27th January 2015: Question: I’m on a marriage probationary visa. What can I do to stay in the UK if I divorce?
Answer: If marriages or relationships break down during the probationary period for reasons other than domestic violence or bereavement, you no longer have any claim to remain in the UK on the basis of that relationship.
A very strong case will have to be made. The Home Office will consider the respective strength of your ties with the UK and your native country and whether you would suffer any hardship if you are required to leave the UK.
Leave to remain will not normally be granted unless there are most exceptional compelling or compassionate circumstances. The factors to be considered would include: the length of time you were married before the breakdown: the length of time you have been a resident of the UK: your age and the proportion of time spent outside the UK before entering and whether there are any children from your marriage.
The Secretary of State has the discretion to exercise her power in an individual’s favour depending on the circumstances of an individual’s case. If a person has no chance of success under the Immigration Rules and his/her circumstances are truly exceptional and compassionate, that person can then make an application to the Secretary of State requesting leave to remain in the United Kingdom outside of the Immigration Rules.
Such an application is usually called a ‘Discretionary Leave to Remain’ application as the migrant is requesting leave to remain at the discretion of the Secretary of State.
In the event of a marriage breakdown where there are children arising from the marriage, and the children have legal status in the UK in that they are British citizens, or hold Indefinite Leave to Remain status or have some other visa that allows them to lawfully remain in the UK, then this will most likely strengthen any application made to the Home Office asking for an extension for further leave to remain if it can be shown that the migrant parent intends to maintain a parental relationship with the child.
It could also be the case that the parties to the divorce are in the midst of family law proceedings regarding child care or ancillary relief matters. Where there are matters of Contact Orders/Residence Orders through the family courts, then this too provides a basis for the migrant to make a further application for leave to remain in the UK due to ongoing family law proceedings.
If in any event they are no children arising from the marriage, then the migrant will need to consider whether they need to make an application requesting a variation of visa and consider potentially requesting from the Home Office that they be allowed to remain in the UK on a Discretionary Leave to Remain basis.
It should also be noted that if the migrant has been a victim of domestic abuse were a claim is made for leave to remain in the UK on the basis of domestic violence, the person can apply for Indefinite Leave to Remain.
The government introduced a new definition of domestic violence from 31st March 2013. The definition of domestic violence and abuse is:
Any incident or pattern of incidents controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can include, but is not limited to, the following types of abuse:
Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by:
• isolating them from sources of support
• exploiting their resources and capacities for personal gain
• depriving them of the means needed for independence
• resistance and escape, and
• regulating their everyday behaviour.
Coercive behaviour is:
• an act or a pattern of acts of assault, threats, humiliation and intimidation, or
• other abuse that is used to harm, punish, or frighten their victim
There are specific immigration rules that have been designed to specifically assist victims of domestic violence so it is important to obtain legal advice as soon as possible if you are a victim of domestic violence.
Where however a migrant is not a victim of domestic violence and does not have children in the UK, then they do have the option of making an application requesting a variation of legal status to Discretionary Leave to Remain before the expiry of their current spouse visa. It is very important that the migrant makes an application for a variation of another type of visa before the expiry of their current visa as this will ensure that they may remain lawfully in the UK (so that they may continue to live/study/work in the UK) until an outcome is decided in their immigration case.
By Raheela Hussain
6 Market Parade
London N9 9HF
Tel. 0208 884 1166
Please note that the above article does not relate to nationals of the European Union. The above article is meant to be relied upon as an informative article only and in no way constitutes legal advice. For advice regarding your case, please contact Greenfields Solicitors for a Consultation. Ms Hussain offers both telephone and in-office consultations for a fee of just £49.00 for 40 minutes advice.