Rights of Residence after Divorce

Where a couple are divorcing and one spouse’s residence is reliant on being married to a UK citizen or person with UK settled status, there will obviously be concerns. Ensuring you get expert legal advice from a top family law is vital in these cases.

Notify the Home Office

The Home Office must be informed where a relationship has broken down and one of the parties is reliant on the marriage, for example where they are:

• On a family visa as a spouse.
• Listed as a dependent on the spouse’s visa.
• Sometimes where there is a family permit.

This should be done straightaway- you should not wait for the divorce to be finalised to do this. You need to provide both your own and your spouse’s details as well as those of any children.

How long can you remain in the UK?

Following notification to the Home Office, the period of time that the person can remain in the UK is usually reduced to 60 days. This allows the person to assess their options and to see if there are other routes by which they can stay in this country. The period can be altered in exceptional circumstances (to immediate curtailment or an increase of over 60 days) or where there are less than 60 days left on the visa.

How to remain in the UK

Work Visas

It is possible for a divorced spouse to apply for a different visa to stay in the UK.

It may be possible to apply for a work visa (Tier 2 General Visa), which is a skilled worker visa if the following requirements are met:

• Sponsorship
• Skill
• Salary
• Language

The person must work in an area that is on the “shortage occupation list” and remain in the job to keep the visa.

Family visa

A non UK citizen that has a child that is a British citizen or has UK settled status and has lived in the UK for at least 7 years can apply for a visa for this reason. They must prove they have taken an active role in the upbringing of the child.

Retained Right of Residence

A non-EEA residence that was resident in this country because of an EEA spouse can retain the right to remain in the UK if the couple divorce where certain criteria are met. The spouse of the EU, Swiss or EEA citizen must have started residing in the UK with their spouse before 1 January 2021, due to the changes from Brexit. Retained Rights of Residence applications will no longer be accepted after 30 June 2021. Those with Retained Rights of Residence that possess a registration certificate an remain the UK until 30 June 2021 and then will need to register under the EU Settlement Scheme (see below).

The requirements for a Retained Rights of Residence application are as follows:

• Evidence of the divorce.
• Proof that the ex-spouse was a qualified person under the EU free movement rules.
• The non-EEA national must have been resident in the UK on the date of divorce.

One of the following also must be met:

• The marriage lasted for at least three years before divorce proceedings were initiated and the couple resided in the UK for at least one year of marriage; or
• The non-EEA person that has custody of a child from the ex-spouse who was a qualified person; or
• The non-EEA person right of access to a child under 18 years of the ex-spouse who was a qualified person.

Indefinite Leave to Remain (settle in the UK)

Indefinite leave to remain (ILR) means that the person can stay in the UK without any restrictions. EU citizens that were living in the UK by 31 December 2020 can apply to the EU Settlement Scheme to continue living here after 30 June 2021. Those that moved here after 1 January 2021 and are now getting divorced will need to follow a different route.

Indefinite leave to remain applies to people that have at least five years’ continuous residence with lawful immigration status.

If the marriage ended due to domestic abuse

It is possible to remain in the UK where the marriage ended due to domestic abuse. The routes that can be used are:

• A three-month extension to the current visa to allow time to apply for a different option.
• An application for ILR if the ex-spouse who was a British citizen or a person settled in the UK.
• A family visa application where the person has a child under 18 that lives in the UK with permission to stay.
• Asylum application if returning to the home country is not an option due to a fear of persecution.

Private life route

The party can also apply under the “private life” route where one of the following apply:

• Aged 18-24 years and have lived continuously in the UK at least half their life.
• Aged over 18 years and spent less than 20 years in the UK but would have very significant issues residing in the country they would need to return to.
• Over 25 years of age and have lived in the UK continuously for 20 years.

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