Family lawyers will often find themselves dealing with a marriage or relationship breakdown where the immigration status of one or both of the parties may be vulnerable. In such situations it will be vital to have a good grip on how the relationship breakdown may impact on the immigration status, as making the wrong move can have devastating and long-reaching outcomes, particularly for children. In such situations family lawyers need good immigration advice. Likewise, immigration lawyers need to be able to work alongside family lawyers to secure the best possible outcome for their mutual clients.
In this article we explore some of the issues that family lawyers need to be alive to when working at this interface.
It may sounds obvious, but the starting point is to ask what is the immigration status of your client, or for that matter of your client’s soon-to-be ex partner.
They might be British citizens (ie UK passport holders), or if not then possibly “settled” in the UK. Immigration legal terminology can be a little slippery. “Settled” is also sometimes called “Indefinite Leave to Remain” (ILR). Irish citizens living in the UK are treated as “settled”. Brexit and the post-Brexit landscape made things more complex, so now there are some EEA nationals (and their family members) who hold settled status in the UK through the EU Settlement Scheme (EUSS). There are also many EEA nationals and their family members who do not yet hold settled status, but who hold “pre-settled status”.
In principle, if your client is British or settled in the UK, they will not face an adverse immigration outcome from a relationship breakdown, as their status in the UK is secure. Being British or settled is also significant because if you have either, you can then sponsor partners to enter or remain in the UK.
Many others who have some kind of a temporary status in their own right, for example students or skilled workers, won’t find that status under threat from a relationship breakdown.
The clients who potentially face the most difficulty are those who find themselves in the UK as the “partners” of British citizens or those who are “settled” or Irish, but who are not themselves yet settled here. It takes five years of residence as a partner to secure a settled status. Also vulnerable are those who have status in the UK as the dependent partner of a person who themselves has temporary status here. Once you are settled or have British citizenship, you are no longer bound by the relationship.
In Immigration Rules terminology “partner” means a spouse, a civil partner, a fiancé(e) or proposed civil partner; or a cohabitee who has been living together with their partner in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application.
Impacts of relationship breakdown
Once a relationship has broken down permanently, the partner who is vulnerable in immigration status terms ceases to meet one of the core requirements of the rules under which they were granted permission because they are no longer in a genuine and subsisting relationship with their sponsoring partner. It’s critical to understand that for most clients it is the relationship breakdown which places the immigration status in jeopardy, not the timing of divorce proceedings per se.
Once no longer in the qualifying relationship, permission to reside in the UK is liable to be “curtailed” by the Home Office.
If they leave the UK and attempt to re-enter, their permission can be cancelled at the border if a border officer becomes aware that they no longer meet the requirements of the grant of permission held. There is the possibility of them committing the offence of illegal entry by deception should they leave the UK and re-enter, knowing that they no longer meet these requirements. Consequently, clients in this position should be advised not to travel until their immigration status has been resolved. That advice is difficult to land with many clients!
Also, practitioners should be aware that there is a requirement for a holder of a Biometric Resident Permit (BRP) – most clients in this situation will hold BRPs – to notify the Home Office as soon as reasonably practicable:
“if he was given leave to enter or remain in the United Kingdom in accordance with a provision of the Immigration Rules and knows or suspects that owing to a change of his circumstances he would no longer qualify for leave under that provision.”
Failure to report a breakdown of a relationship could be considered a breach of immigration conditions and impact the ability to make future applications in another capacity.
Of course, it is also possible for the “sponsoring partner” to report, and this may well be a factor, particularly if the relationship breakdown is “hostile”.
Curtailment: key issues and considerations
When the Home Office brings a person’s status to an early conclusion via “curtailment”, the appropriate notices may be sent to the applicant partner’s email address, correspondence address, last known address or to the representative (if there is one on record). So, if a client is anticipating curtailment, they will need to ensure that such contact details are up to date to avoid missing the notice.
If they then leave the UK following receipt of the curtailment notice, their permission to stay/status will lapse. If they are outside of the UK when the curtailment notice is issued and seek to return, the border officer may cancel their permission at the border and refuse them entry. So it’s vital that they should be advised not to travel until their immigration status has been resolved.
A curtailment notice usually gives the subject 60 days to look to make a new application. Provided a new application is made before the end of the curtailment period, they will remain lawfully in the UK until a decision on the new application has been made.
Particular options might include: an application based on being the parent of a relevant child or an application for permanent status because the relationship ended as a result of domestic abuse (the definition here is closely aligned with the definition used in family law and can include physical and emotional abuse, coercive control and so on). Alternatively, they might want to pursue other types of immigration status, for example as a skilled worker (sponsored by employer), or an application based upon a new relationship. They will almost certainly need expert immigration advice.
Family members with status under the EU Settlement Scheme
Special arrangements are in place for certain EEA nationals and their family members. Under EU law, the position for those who were separating from a partner was always a little easier in that in certain situations you could “retain” a right of residence post-relationship breakdown.
However, the power to curtail/cancel leave to remain is still there where the marriage/civil partnership has terminated and also, issues with travelling still apply once the marriage/civil partnership has terminated. Unusually, when dealing with EEA nationals it is the termination of the marriage that is the key date rather than the end of the genuine and subsisting relationship.
There are a number of further options available for the spouse or civil partner of a relevant EEA citizen where the marriage/civil partnership has terminated, the applicant partner was residing in the UK at the date of the termination of the marriage or civil partnership, and prior to the initiation of the proceedings for the termination of the marriage/civil partnership:
- the marriage/civil partnership had lasted for at least three years and the parties had been resident in the UK for a continuous period of at least one year during its duration
- the applicant has custody of a child of the relevant EEA citizen
- the applicant has the right of access to a child of the relevant EEA citizen, where the child is under the age of 18 years and where a court has ordered that such access must take place in the UK, or
- their continued right of residence in the UK is warranted by particularly difficult circumstances, such as where they or another family member have been a victim of domestic violence or abuse while the marriage/civil partnership was subsisting.
If approved, the applicant could then obtain further pre-settled status or settled status (if they have resided in the UK for five continuous years). Again, in these circumstances expert immigration advice is highly recommended!
Children as principals or as dependants
A child can occupy different positions depending on the facts of the relationship breakdown: they become the “hook” of an application for a parent (on the basis of parent’s contact with or responsibility for a child) or the child might also need to make application to stay in UK because they are dependent upon an adult for permission to remain in the UK.
So the typical scenario might involve a family where one partner is British or settled; or a family where one main applicant has temporary permission to stay in the UK and they have a partner and children who joined them as dependants.
Generally speaking, the relevant child will need to be under 18, living in the UK, a British Citizen, settled in the UK, or in some limited cases have pre-settled status under EUSS (“British/settled”) or in some circumstances, have lived in UK for at least seven years. If these criteria are not fully engaged, then a discretionary application will be necessary. An overarching requirement will be that it is not reasonable to expect the child to leave the UK taking into account best interests as the primary consideration.
Cases outside the Immigration Rules
Of course, there will be many cases where the circumstances of the applicant and/or their child/children don’t exactly match the Immigration Rules. In these cases, the approach will be to seek the exercise of Home Office discretion, or argue reliance on Article 8 ECHR Family and Private Life rights. Reference will likely need to be made to s55 of the Borders, Citizenship and Immigration Act 2009, which protects a child’s best interests.
It will be important not to lose sight of the importance of a child’s particular circumstances: their relationship with the other parent, their integration in the UK, any particular needs and medical evidence or other professional reports – such as an independent social worker.
What can family lawyers do to protect the immigration status of our clients and their families?
As family lawyers, we should not be shy to be inquisitive about our clients’ immigration statuses and how they might be impacted by the separation, particularly in the minority of cases when the timing of the end of the marriage can be critical. Early, specialist immigration advice is going to be key to keeping the families we work with together in the UK.
When working with these clients in any dispute resolution process, communication and teamwork at an early stage of the separation may prove key to regularising one spouse’s immigration status. We have been exploring between us how in “working together” processes, such as mediation or collaborative law, clients might wish to invite an immigration specialist into a joint meeting to ensure a joined-up approach and properly consider the impact of decisions on the vulnerable parties’ immigration status.
Many of us will be used to advising those who are in the first throes of considering a separation, taking early advice in order to be able to make an informed decision. In those situations, we might advise them to take immigration advice immediately and make any necessary applications whilst the relationship continues, rather than waiting until a decision has been made as to the future of the relationship.
If we are acting for the British or settled partner in a hostile separation, we would suggest that as Resolution members we should tread carefully if our client might be inclined to use immigration status as a weapon, and encourage our clients to focus on the impact on the children of a parent leaving or being refused re-entry to the UK.
One very important take away for family lawyers is to advise any client whose immigration may be reliant on their partner not to leave the country without first taking specialist immigration advice to ensure they do not end up refused re-entry and find themselves separated from their families.