Relationship Breakdown and Immigration

Eparation

Por relat ionship breakdow n can happen in various circum st ances

Som et im es it is clearly at t ribut able t o one part y?s conduct , for exam ple w here t here has been dom est ic violence; but for t he m ost part neit her part y is ?at fault ?

Acknowledgement of this was reflected in the change of divorce law in April 2022 Divorce no longer requires one party to blame the other by alleging misconduct

The stress and distress of separation can be made worse where one party?s immigration is dependent on the continuation of the relationship The following examines alternative routes available to applicants who have limited leave to remain in the UK based on their relationship and where that relationship has now broken down

Marriage breakdow n and dom est ic violence

If you are married and you are in the UK with a spouse / partner visa and your relationship breaks down due to domestic violence, can you still stay in the UK?

The answer is YESunder the Domestic Violence Indefinite Leave to Remain (DVILR) route, provided that:

1 Your visa is that of a spouse or unmarried partner or as a same sex partner Those who entered the UK as fiancées / fiancés and have not yet swapped to a spouse or partner visa will not qualify

2 You must be physically present in the UK This is usually not a problem but if you are abroad you cannot apply under the DVILR route because you are not present in the UK

3 You have made a valid application This broadly means that you have provided the

Home Office with the relevant documents to support your application For example, you require a current passport; if you do not have one because it was taken by your estranged partner, your application may still be considered ?valid? In this event, explain why you cannot provide your passport If you have applied for a new passport, send in your receipt as evidence of your application for a new passport Further, for your application to be valid you are required to pay the current fee of £2,404 unless you can get a waiver (see below)

4 You must satisfy the ?suitability requirements?for indefinite leave to remain This generally means that you are of ?good? character If contrary to this, meaning that you have criminal convictions, this may lead to a refusal of your application

5 You were subjected to domestic violence and abuse It is important to note that domestic violence goes beyond physical or sexual violence The general definition of domestic violence is:

Anyincident or pattern of incidentsof controlling, coerciveor threateningbehaviour, violence, or abusebetween those aged 16 or over who are or have been intimatepartnersor familymembersregardlessof gender or sexuality

Behaviour that counts as domestic violence is wider than your partner beating you up Domestic violence can be controlling behaviour or threats of violence So, if you are placed in a state of fear of violence, even if you are not physically assaulted, that can also be regarded as domestic violence

Another important point to note is that the behaviour does not need to come from your partner An example includes if you live with your mother-in-law and she subjects you to domestic violence, this can also be regarded as domestic violence and abuse evidence according to the Home Office?s list By contrast, a written statement from you is regarded as ?weak?evidence Many victims of domestic violence face the upheaval of evidencing their claim for various reasons, not least of which is the understandable reluctance for the victim to involve authorities for fear of further reprisals or the knowledge that their current immigration status depends on the relationship If faced with such a case, you should submit alternative and additional evidence such as photographs of your injuries, letter(s) from your GPor statements from friends if they witnessed events It is for you to prove that you were subjected to domestic violence, so it is also for you to submit documents in support of your case

As with most immigration cases EVIDENCEis crucial The Home Office has a long list of possible acceptable evidence and their weight A criminal conviction against your partner for their assault on you is ?strong?

Applicat ion grant ed

If you prove the above, that is: you entered the UK as a partner or spouse, you are of ?good?character and you were the victim of domestic violence, you will be granted Indefinite Leave to Remain This means you will no longer be subject to immigration control and may permanently live in the UK Ot her t hings t o not e

If you do not have the money to pay for the Home Office fee, which is currently £2,404, you can apply for a waiver of the fee You do this by submitting the application without paying the fee and providing evidence that you qualify for a waiver Evidence can vary One example is a letter from the refuge where you are receiving support

Expired Visa

If your visa has expired and you are now an overstayer, you can still make an application under DVILR; but you need to provide the Home Office with an explanation for the delay You need to support this with evidence Evidence can be in the form of medical reports, say if you suffered a breakdown because of your circumstances

The Home Office will look at: the age of evidence being relied upon, if there are any official reports - for example from the police, which shows passports and travel documents were withheld and the police had to retrieve them - the time between the alleged breakdown of the relationship and the application, including how long the applicant has been living apart from the partner (Source: H/O guidance on Victims of domestic violence and abuse Version 14 0)

DVILR applicat ion failed

If your application under the domestic violence route is unsuccessful you may still be granted leave under a different route For example under the Human Rights Act It is crucial that when making an application under DVILRthat you also submit representations on Human Rights That means you should provide details of your life in the UK, any children, friends and family

CONTINUED on Page 14 you have in the UK If successful, you will be granted limited leave (usually 30 months) which can be extended and later lead to settlement

Children in relat ionship

If your relationship has ended but you have children in the UK, as a parent, you should consider making an application based on your relationship with your child The conditions you will need to satisfy vary depending on whether you have a visa, or if you are applying from abroad or from within the UK The common factors in all the above are:

The child m ust be:

* Living in the UK

* Under 18 years of age

* Either a British or Irish national, or have settled status in the UK

The most challenging aspect when making an application to either enter or remain as the parent of a child living in the UK is often the ?relationship requirement?

The Home Office will need to be satisfied that you play an active role in your child?s upbringing, and you plan to continue after you apply As with most applications, evidence is ?KING? If you have a good relationship with your former partner, then a statement from them confirming your role in your child?s life can be persuasive evidence In the absence of this (or in addition to it), it is helpful to provide letters from your child?s school stating that you take them to school or attend parent meetings Some doctors are also happy to help confirm that you have been actively involved in caring for your child by taking them to their appointments If you have court documents to confirm the active part you play in your child?s life such evidence can be crucial; but beware that you may need permission from the court to use court documents as evidence Without permission it is an offence to do so

Visa

Grant Ed

This will usually be for about two and a half years, during which time you can work (without restriction) in the UK and travel in/out of the UK for the duration of your visa

When you can apply for settlement (indefinite leave to remain) will depend on the type of visa you have been given Usually, ILRcan be applied after five or ten years You should seek legal advice to ensure that you know whether an extension for limited leave or ILRis appropriate in your situation Submitting the wrong application can be expensive as it may mean an additional set of fees

No visa

A further complication following a relationship breakdown is where neither child nor parent have leave to remain; that is to say both are without a visa in the UK There are scenarios when I would highly recommend that applicants seek legal advice before pursuing an application and the above situation is definitely such a case

A useful starting point is EX1 of the Immigration Rules This paragraph applies if:

1 (a) (i) the applicant has a genuine and subsisting parental relationship with a child who-

(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;

(bb) is in the UK;

(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and

(ii) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK; A successful application under the above will likely result in a grant of leave to remain to both the child and parent for about two and a half years This can be extended or even varied and can, in due course, lead to settlement

Ot her possibilit ies?

Em ploym ent

Other routes may be available to an applicant whose relationship has broken down such as variation of leave to that of employment under the skilled worker route This route has its own conditions including a Certificate of Sponsorship from a licenced (by the Home Office) employer

Fam ily and Privat e Life

Depending on your situation the Home Office may need to consider your application under Article 8 of the Human Rights Act In essence the Home Office will have regard to your Family and Private life in the UK To say that such an application is challenging is an understatement It is nevertheless important that you include with your application Human Rights representations as this may at least provide you with a right of appeal in the event of refusal Grant of leave on this basis will be for two and a half years and applicants will usually need to show a total of ten years before they will be able to apply for settlement