If you are a foreign national with a UK spouse visa and your relationship has recently come to an end (or you think it may), you may be concerned about what will happen to your immigration status and the options now available to you and your children. In a nutshell, if you are no longer in a relationship with your sponsor (i.e. your spouse), you are no longer entitled to remain in the UK on a spouse visa. You can, however, apply for another UK visa or possibly indefinite leave to remain (ILR) if you meet the requirements.
Our immigration team at Reiss Edwards has extensive experience helping spouse visa holders understand their rights and options in the event of separation. Should you require support with divorce proceedings, our divorce lawyers are also here to help. To speak with one of our lawyers, call 020 3744 2797 or complete our enquiry form.
What happens to a spouse visa after the divorce?
The Home Office makes it very clear that a person in the UK on a spouse visa is only able to stay as long as they remain in a genuine relationship with their partner. If you are a spouse visa holder, you must inform the Home Office when you divorce or separate from your partner. You can use the Home Office online service or by post to tell them you are getting divorced. Check Home Office website for more information.
Likewise, the Home Office also requires that the ex-partner inform them of the separation. In other words, both parties have an obligation to tell the Home Office in the event of divorce or separation.
Once you inform the Home Office of your divorce, you will not lose your spouse visa immediately. Instead, the Home Office will typically curtail (i.e. shorten) your visa, giving you 60 days to either apply for a new visa or leave the UK.
How long can I stay in the UK after divorce
After you have informed the Home Office of your separation and divorce, the spouse visa will typically be shortened (curtailed) to 60 days. This means that unless the spouse visa holder takes other action, they will need to leave the UK within 60 days. The reason that the Home Office does not immediately revoke the visa is to allow the holder to review their options and make a decision as to the best course of action for themselves and their children. Typically this will be to apply for a different visa, apply for Indefinite Leave to Remain or leave the country.
If the spouse visa has less than 60 days remaining when you inform the Home Office of the separation, the current expiry date will remain as is.
In addition, if there are exceptional circumstances, the Home Office may decide to curtail the visa immediately or allow a longer period of curtailment beyond the standard 60 days. For example, if the visa holder has been a victim of domestic violence, the Home Office may not shorten the duration of the visa.
Can your wife/husband cancel your spouse visa?
No, your wife or husband cannot simply cancel your spouse visa; only the Home Office can do this. The immigration rules state that you or your ex-partner must inform the Home Office if you are getting divorced or separating if you have a visa, which depends on your relationship. Simply telling the Home Office about your divorce does not mean that your spouse’s visa will be automatically cancelled. Rather, the Home Office will assess the case and determine what to do next. They may send you a curtailment letter giving you 60 days to apply for a new visa or leave the UK.
What are my options after divorce
If your spouse’s visa has been curtailed after you informed the Home Office about your divorce, we recommend speaking to an immigration solicitor in the UK as soon as possible who can explain your immigration options. Remember, you have a short time to apply for a new visa. If you wish to stay in the UK, we will explain the visas available to you and manage the application process on your behalf. If your spouse’s visa has been curtailed, depending on your circumstances, you may be able to apply for:
- Work Visas (e.g. Skilled Worker Visa) if you meet the requirements
- Parent visa under the Family visa scheme – this may be permitted if you have a child who is a British citizen, has Indefinite Leave to Remain (ILR) or has been living in the UK for 7 years, and it would not be reasonable for them to leave
- Spouse visa if you have remarried
- Indefinite Leave to Remain – if you have been living in the UK continuously for at least 5 years. Victims of domestic violence while on a Spouse visa can also apply for ILR.
- If your UK based partner was from the EU, Switzerland, Norway, Iceland or Liechtenstein, you may be eligible to apply for an EU Settlement Scheme family permit if you have “Retained Right of Residence”
If you have a child with British nationality
You may be able to apply for a family visa (under the parent rout) if the following apply:
- Your child is under 18 when you apply or were under 18 when you were first granted leave and they do not live an independent life
- Your child is a British or Irish citizen
- Your child has settled in the UK (e.g. They have ILR, settled status or proof of permanent residence)
- Your child is from the EU, Switzerland, Norway, Iceland Or Liechtenstein and has pre-settled status (and were living in the UK before 1 January 2021)
- Your child has been living in the UK for 7 years continuously and it would not be reasonable for them to leave (this applies if you are currently living in the UK).
Retained right of residence – EU Settlement Scheme family permit
In the case of a divorce, dissolution, or separation, if your UK based partner was from the EU, Switzerland, Norway, Iceland or Liechtenstein, you may be able to apply for an EU Settlement Scheme family permit based on your retained rights of residence. This is the case if one of the following applies:
- The marriage or civil partnership lasted for at least 3 years, and you both lived in the UK for at least one year during that time
- You have custody of your previous family member’s child
- You have been given right of access in the UK to your previous family member’s child, and the child is under 18
- You or another family member have experienced particularly difficult circumstances – for example, as the victim of domestic violence or abuse in the marriage or civil partnership
If you are unsure as to whether you do qualify, please get in touch, and one of our immigration lawyers will be happy to take a look at your case.
Can ILR be revoked if I divorce?
If you applied for and gained ILR on the basis of your marriage, civil partnership, or relationship (e.g. if you held a spouse visa for 5 years), what matters is your intention to remain living and in a genuine relationship with your partner when you submitted your ILR application. Naturally, some relationships come to an end, and in this situation, you would not ordinarily lose your ILR status.
Can I sponsor another spouse after divorce?
If you have recently divorced someone who held a spouse visa, you can sponsor a new foreign partner to come and live in the UK. However, you may have to provide additional evidence to prove that your new relationship is genuine. It is important to note that you cannot sponsor two partners, so it is essential to inform the Home Office of your separation or divorce, and your divorce must be legally finalised (i.e. you must have a decree absolute or equivalent). Be aware that the Home Office may closely examine your second spouse visa sponsorship and application, especially if your divorce and new relationship happened quickly.
Additionally, your new partner can only apply for a spouse visa if you are both married or in a civil partnership that is recognised in the UK or have been living together in a relationship for at least 2 years when you apply. They must also meet the wider requirements for a spouse, as explained in this article, including the English language, financial requirements, accommodation requirements, and good character requirements.
Alternatively, if you are planning to get married in the UK, your new partner can apply for a fiance visa. In order for this to be granted, you must intend to marry or enter into a civil partnership in the UK within 6 months of their arrival in the UK.
References:
GOV.UK: Visas when you separate or divorce
Home Office: Cancellation and curtailment of permission
