Divorce/Separation

01   Can I remain in the UK on my current visa?

Unless you already have Indefinite Leave to Remain (ILR), you are likely to have a visa as a partner of a soldier, therefore your entitlement to remain in the UK is reliant on you having a subsisting relationship. Once you separate, you are no longer meeting the terms of that visa and are required to either return to your home country or to apply for a visa in a different immigration category.

02   I have a limited leave visa, can I apply for ILR?

No, unfortunately once you are separated you no longer meet the requirements to apply for ILR unless you meet the requirements to apply under the Long Residence rules.

If you have a visa that was issued as the spouse of a soldier, then the rules require that your relationship is still subsisting and that you intend to continue living together.

03   What visa can I apply for?

This will really depend on your personal circumstances.

1. You have a British child or a child who has been living in UK for seven years continuously. You will be eligible to apply for limited leave to remain as a parent if you have sole responsibility or access rights to the child. You will either qualify on a five-year route to settlement, or a 10-year route. Neither route usually allows access to public funds (benefits) until you are eligible for ILR.
2. Your marriage has broken down as a result of domestic abuse. You may be eligible to apply for ILR under the domestic abuse rules. See section below on Domestic Abuse.
3. You have a valid limited leave visa and have lived in the UK for 10 years. You should be eligible to apply for ILR on the basis of your long residence. However, you need to have been living in the UK legally for the whole of the 10 years. UKBA does not currently recognise your time overseas on accompanied assignments as residence in the UK. See GOV.UK: Indefinite leave to remain if you’ve been in the UK for 10 years (long residence) for further information.
4. You don’t have a valid visa, but you have lived in the UK for 20 years, or if under 25, have lived here for half of your life. You should be eligible to apply for leave to remain on the basis of your private life.  Contact AFF’s F&C team for assistance with the application.

If you don’t meet any of the above circumstances, then you may find that your only option is to return to your home country. However, there are other exceptional circumstances, which may need to be taken into account.

Exceptional circumstances could include:

• Best interest of the child
• Length of time in the UK, including social, cultural and family ties
• Likely circumstances you would face in your home country were you to return

You should contact the F&C team in the first instance. We will assess whether we are able to offer further assistance or whether we will need to refer you to a solicitor or a more suitable agency. See below for information about further immigration advice.

04   My visa has expired, what can I apply for?

Again, this depends on the circumstances. You are not required to have a valid visa to apply to remain under routes  1, 2 and 4 below.

Spouses with British children or children who have lived in the UK for seven years or more

You will be eligible to apply for limited leave. If you are eligible, you will need to apply using form FLR(FP). See GOV.UK: Family visas: apply, extend or switch for a link to the form.

Five-year route to settlement: you need to meet all of the requirements of the immigration rules. 

• You have sole responsibility for the child or access rights to the child. If the child lives with the other parent, then that parent must also be British or have ILR. You must provide evidence of your sole responsibility or that you take an active role in the child’s upbringing
• You must have a valid visa, which was issued for more than six months
• You must be able to adequately maintain and house yourself and your child
• You must meet the English language requirement
• You must meet the suitability requirements (i.e. you have no criminal convictions)

10-year route to settlement: you will need to meet the following requirements: 

• You have sole responsibility or access rights to the child. If the child lives with the other parent, then that parent must also be British or have ILR. You must provide evidence of your sole responsibility or that you take an active role in the child’s upbringing.
• You must not be in the UK as a visitor or with leave granted for a period of six months or less. However, the visa you have does not have to be valid.

Evidence required: 

You should provide as much evidence as possible to show that you meet the requirements of the rules. You should contact AFF’s F&C team in the first instance.

05   Spouses with British children or children who have lived in the UK for seven years or more

You will be eligible to apply for limited leave. If you are eligible, you will need to apply using form FLR(FP). See GOV.UK: Family visas: apply, extend or switch for a link to the form.

5 year route to settlement: you need to meet all of the requirements of the immigration rules.

• You have sole responsibility for the child or access rights to the child. If the child lives with the other parent then that parent must also be British or have ILR. You must provide evidence of your sole responsibility or that you take an active role in the child’s upbringing.
• You must have a valid visa which was issued for more than 6 months
• You must be able to adequately maintain and house yourself and your child.
• You must meet the English language requirement
• You must meet the suitability requirements (i.e. you have no criminal convictions)

10 year route to settlement: you will need to meet the following requirements:

• You have sole responsibility or access rights to the child. If the child lives with the other parent then that parent must also be British or have ILR. You must provide evidence of your sole responsibility or that you take an active role in the child’s upbringing.
• You must not be in the UK as a visitor or with leave granted for a period of 6 months or less. However the visa you have does not have to be valid.

Evidence required: 

You should provide as much evidence as possible to show that you meet the requirements of the rules. You should contact the F&C team in the first instance.

06   Will I have to pay for the application to remain?

If you have children, cannot work and have no other means of income, then you can apply for a fee waiver for the application.

To be successful, you will need to provide detailed information about your current circumstances to prove that you are destitute.

07   Will I be eligible for benefits if I am given a limited leave visa?

Not usually. Limited leave visas are only issued with the condition of ‘no recourse to public funds (NRPF)’ unless you can prove you are destitute or where there are compelling reasons relating to the welfare of a child.

Having no recourse to public funds means that you can’t apply for child tax credits or child benefit as well as housing benefit and income support. A list of benefits that you are not eligible for can be found at GOV.UK: Public funds guidance.

Claiming destitution

If you are destitute, you do not have adequate accommodation and/or you cannot meet your other essential living needs.

You will need to provide evidence of the destitution and will need to explain why you cannot work to support yourself and any children.

Being in receipt of local authority support (see section below) does not automatically mean you will be assessed as destitute for the purposes of an immigration application. You are still required to supply all evidence of destitution with the application for leave to remain.

08   Access to benefits for EU spouses

It has become clear, due to all the work being done around Brexit, that EU spouses in the UK who are not working or paying sickness insurance don’t qualify for a right of residence because they are not a ‘qualified person’. To be a ‘qualified person’ as an EU national in the UK you need to be in one of the following categories:

• Workers
• Self-employed people
• Self-sufficient people with Comprehensive Sickness Insurance
• Students with Comprehensive Sickness Insurance

So, because you don’t have a right of residence, you essentially don’t qualify for any benefits because you won’t pass the habitual residence test (HRT).

Generally, this hasn’t mattered, because the Government has not enforced this requirement and EU spouses still have access to the NHS and can live in the UK permanently on their passport.

However, when a marriage breaks down, the spouse’s inability to access benefits and to qualify for social housing obviously has a massive impact. The only option for spouses in this position appears to be by becoming a qualified person by getting a job. However, there are certain criteria for the job, and it won’t automatically and immediately qualify you. There also appear to be further restrictions if you become a job seeker, read more at Citizens Advice: Check if you have the right to reside for benefits. 

Do I have derivative rights because of my British children?

Derivative rights might apply if you are working in the UK. These could entitle you to some benefits, we are currently seeking further advice about these options.   

Where can I get further information?

Speak to your local Citizens Advice, or see Citizens Advice: Check if you have the right to reside for benefits for a more detailed explanation about this issue. AFF’s F&C team are not qualified to give benefits advice.

What will happen after Brexit

After 31 January 2020, as part of the Brexit negotiations, it will no longer be necessary for spouses who have been self-sufficient to have held sickness insurance. Therefore, any spouse who has already lived in the UK for five years will qualify for permanent residency and for access to benefits. This is good news for spouses who have lived in the UK for five years, please refer to the Brexit section for further information.

09   Should I be receiving child maintenance?

Yes. If you have children and they live with you most of the time, then the soldier has a legal responsibility to support them. See GOV.UK: Child Maintenance Service to find out more.

If the soldier consistently fails to meet their financial responsibilities in respect of their children, the Child Maintenance and Enforcement Commission (CMEC) may make a Deduction from Earnings Request (DER) against the serving person.

If you are overseas and wish to enforce a Foreign Court Order to compel the soldier to make payments, you will first need to have the order registered in a UK court. This is done through the central authority (or local courts) in your home country and the GOV.UK: UK REMO unit (Reciprocal Enforcement of Maintenance Orders).

10   What support will my Local Authority (LA) give me?

To see whether you are eligible for LA support, you will need to go to your local social services department to ask for a ‘Child in Need’ and a ‘Human Rights Assessment’ to be conducted.

Local authorities have a duty to safeguard and promote the welfare of children in need within their jurisdiction. Families with no recourse to public funds will usually be assessed to see if they are eligible to receive residential accommodation and subsistence under Section 17 of the Children Act 1989.

What about overstayers?

There are substantial restrictions on the support that can be provided under Section 17 CA to families that are unlawfully in the UK.

Support under the Children Act to such families can only be provided if it is assessed, in a Human Rights Assessment, that withholding or withdrawing this support would breach your human rights under the ECHR.

Further information on the duties of the local authority and the guidance used to assess eligibility for assistance can be found at NRPF Network: Support for migrant families.

Further information is available on the NRPF website (search ‘social services’) on the specific support that local authorities can provide.

11   What support can Service charities provide?

In some cases, Royal British Legion (RBL) and SSAFA will provide small grants and vouchers to assist with day-to-day living, but this will very much be on a case specific basis and cannot be relied upon as a form of income.

You should speak to your welfare worker so that an assessment can be made. Charities will not pay for the cost of visa applications.

12   Where can I get other advice e.g. on housing options?

See the Housing section on our Separation & Divorce page for further information where it details the process for remaining in your Service Family Accommodation (SFA) and the housing options for you once you have to leave your SFA. These can include the Services Cotswold Centre or the SSAFA stepping stone home.

You are still expected to pay for the accommodation, but funding may be provided by Service charities depending on your specific circumstances.

You should speak to your caseworker for more information about your options.