In January we posted an article (please see below) about how to secure a UK visa after divorce. The article is about divorcing from an EEA national and how to obtain a Right of Residence in the UK.
But what if you are divorcing from a British citizen? If you are married to a British citizen, or a person with Indefinite Leave to Remain in the UK and your marriage or civil partnership is breaking down, you can seek to remain in Britain if you have a child.
The visa route is called Parent of a Child in the UK.
This visa is for anyone who has a British child or settled, who has established responsibility or contact with their child following the breakdown of their relationship with the child’s other parent.
The Home Office rule states that you are a Parent of a child if you are:
• The stepfather of a child whose father is dead and the reference to stepfather includes a relationship arising through civil partnership (same applies to stepmother);
• The father as well as the mother of an illegitimate child where the person is proved to be the father;
• Genuine transfer of parental responsibility, in cases where the child is born in the UK but is not a British Citizen;
• An adoptive parent.
Additionally, you must be able to prove that
• Your child/ren are under the age of 18 years at the date of application;
• Your child/ren are living in the UK
• Your child/ren are either British or have Indefinite Leave to Remain
The Home Office will require evidence to prove that the other parent is living here and that you intend to have an active role in the upbringing of your child/ren. You will also have to prove that you will be able to adequately maintain and accommodate yourself without recourse to public funds.
We recommend that if your relationship is breaking down that you do not wait until your current visa is about to expire to take actions for your UK visa after divorce. An application to remain in the UK as the Parent of a Child in the UK should be submitted as soon as you realise that your marriage to the other parent of your child will not continue.
Once your application has been approved, you are able to continue to live and work in the UK without any restrictions and after five years you can apply for settlement.
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We have had a number of inquiries relating to securing a UK Visa after divorce from non-EEA nationals currently residing in the UK on the basis of their relationship to an EEA national, who were worried whether or not they would be allowed to continue living in the UK if their relationship broke down.
There are now a number of situations in which a non EEA national previously dependent on an EEA family member can retain the Right to Reside in the UK if the EEA national leaves the UK, dies or the relationship breaks down, provided specific criteria is met.
Visa after divorce
If a non-EEA citizen has been married to, or has been in a civil partnership with an EEA citizen for at least 3 years before the divorce or dissolution proceedings were initiated and they cohabited with the EEA partner in the UK for at least 12 months during their relationship, provided the EEA national was exercising treaty rights in the UK during the 3 year period, the non-EEA Family Member may be eligible to apply for a Retained Right of Residence.
A non-EEA national may be granted a 5 year residence permit which would enable them to work in the UK. Once they have completed a total of 5 years lawful residence in the UK under EEA Regulations, they would be eligible to apply for Permanent Residence. This may include any periods of continuous lawful residence acquired under the EEA Regulations prior to the grant of the residence permit, based on a Retained Right of Residence.
Custody of children
If the former non-EEA national spouse or civil partner of an EEA national has custody or a right of access to a child they have had with the EEA national, they may be eligible to apply for a Retained Rights of Residence on this basis.
After the non-EEA national has resided in the UK for a total of 5 years under the EEA regulations, they may be eligible to apply for Permanent Residence.
Death of the EEA National
If the EEA national has died, a non EEA family member would retain the right to live in the UK if they had been living in the UK for at least the year prior to the EEA national’s death. The non-EEA national must themselves be employed, self-employed or self-sufficient in order to meet the requirements of the regulations.
Procedure
In order to apply for a residence card on the basis of retained rights, you must complete application form EEA (FM) – new forms were introduced in January 2015. You must pay a £55 application fee (for a single applicant) and submit the mandatory evidence (to demonstrate your relationship with the the EEA national and break down of the same, evidence of the EEA national exercising treaty rights in the UK and that you were cohabiting for the 12 months within the 3 years you were in a relationship for) and the specified evidence for the application, for example if the EEA national has died, a certified copy of the death certificate should be included.
If the relationship has broken down acrimoniously, the biggest hurdle many of our clients have is securing the cooperation of their EEA national family member, to provide the original evidence to support their Retained Right of Residence Application. The Home Office don’t exercise much sympathy with applicant’s who claim to meet the requirements of their application, but are not been able to provide evidence to support their claim because of the nature of the breakdown of their relationship and subsequent refusal of the EEA national to provide any of the original mandatory evidence, such as their wage slips or bank statements if they were employed.
Whenever there is a change of circumstances, we always take client’s through the different options available. It might be that an application based on their employment or a new relationship may carry more weight than a Retained Right of Residence.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals