Immigration In Family Law

• Published date: 30 July 2021
• Subject Matter: Immigration, Family and Matrimonial, Family Law, General Immigration, Work Visas, Divorce
• Law Firm: Fletcher Day
• Author: Mr Matthew Cranton

There are a number of ways in which immigration law and family law cross paths. Any transnational family relationship will carry the potential for immigration issues, and this is likely to become more relevant following the end of freedom of movement for EU nationals in the UK as a result of Brexit.

An individual's immigration status is vital in allowing them to live in the UK, and their particular status can affect their right to work or to rent in the UK.

Below are some of the more common immigration issues that arise for family lawyers, and a few tips on handling these situations.

Partner visas – the effect of divorce

The most common immigration issue asked of family lawyers is whether their client's immigration status in the UK (usually where the client holds either a Partner/Spouse visa or a dependant visa) will be at risk as a result of the separation or divorce. Whether they are at risk, and further whether there will be options available to protect their status, will depend on their circumstances.

For Partner visas, there is a positive obligation on both the visa holder and the spouse to report a change of circumstances, which may include a separation or divorce. It is not necessary for the divorce to have reached the decree absolute stage, though there is an argument that whilst there remains a potential for resolution there continues to be an excuse for not reporting the separation – in certain cases this may mean reporting is not necessary until the divorce is official, though individual circumstances should be considered (for example if the couple have not lived together for some time).

Once advised of the split, the Home Office may take steps to curtail the visa holder's leave. This will usually be cut to 60 days, unless the visa would ordinarily expire in this time in any event. The 60 days will run from the notification of the curtailment, rather than 60 days from the report of the split; it is unlikely (but not impossible) that the Home Office will immediately take steps to curtail the leave on receipt of the report.

During the remaining period of the visa (whether curtailed or not), the visa holder may apply for an alternative visa, based on their eligibility. This may include finding a job that will sponsor them, applying under the domestic abuse route (see below), or If they are not eligible for any type of visa, they may use this time to make arrangements for a voluntary departure from the UK.

It is vital that family lawyers understand the implications of the divorce on the immigration status of the affected spouse, whether they are their own client or not, as this may also affect issues regarding finances, assets and...