Divorce or dissolution can complicate matters when it comes to applying for Indefinite Leave to Remain (ILR) (i.e. permanent settlement). Complications may arise following separation for those who have been sponsored by a spouse or partner under the family visa route or are in the UK on a dependent visa. In this guide, we explain divorce and ILR application UK process and what you can do to ensure that your settlement application is approved.
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Overview of Indefinite Leave to Remain (ILR) in the UK
Indefinite Leave to Remain (ILR) allows immigrants from other countries to live in the UK permanently without being subject to immigration control. This means that no more visas or visa extensions are required. Those with ILR are free to work, study, and access the NHS. In order to get ILR, most applicants need to have held a qualifying visa for a certain number of years (typically 5 years). There are, however, many routes to ILR in the UK; to understand which is best for your needs and those of your children, please speak to one of our specialist family law Solicitors, who can provide tailored guidance based on your unique circumstances.
Understanding the key terms used in family immigration law
To help you understand the family immigration rules, it is useful to understand some of the main terms used.
- Sponsor – A spousal ‘sponsor’ is a UK-based person, typically a spouse or partner, who supports your visa application to live in the UK.
- Permanent settlement – Permanent settlement is another term for ILR or permanent residency in the UK.
- Indefinite Leave to Remain (ILR) – An immigration status that allows you to live and work in the UK indefinitely. After one year with ILR, you can apply for British citizenship.
- 10-year route to ILR – Immigrants who have been in the UK continuously for 10 years or more may be able to apply for ILR regardless of the types of visa they have held.
Eligibility for ILR Post-Divorce: Do You Qualify?
Requirements for ILR after divorce or separation
Generally, you must have completed the minimum residency period to gain ILR, which is specific to the type of visa you hold or the route you are on. If you are on a visa which allows you to stay in your own right (e.g. a work visa), your separation will not impact on your ILR eligibility. If, on the other hand, you hold a visa that is dependent on a sponsoring UK-based partner (e.g., a spouse or dependant partner), if you separate, you may lose your right to settle in the UK.
This is because applicants applying for ILR on a spouse or partner visa must be a husband, wife or civil partner of a UK-based partner or have been in a relationship that is like a marriage or civil partnership for at least 2 years. In addition, you must have lived together since you last renewed your visa and intend to continue your relationship after you apply.
However, you may be eligible to apply for permission to settle in the UK permanently if your relationship has broken down due to domestic violence or abuse by your UK-based ex-partner (see below for more details).
Another way to apply for ILR post-divorce is under the 10-year route to ILR. Under the 10-year-long residence route, you can apply for ILR if you have been in the UK legally for 10 years, regardless of the type of visa or visas you held in that time.
In addition to the residency requirement for ILR after divorce, you may also need to pass the Life in the UK test and meet the English language requirement.
What happens to Your ILR pathway after a divorce if you were sponsored by your Spouse?
If you divorce or separate from your UK-based partner (sponsor) while on a spouse or dependent visa, your right to stay in the UK will also come to an end. This means that you may need to apply for another visa if you wish to stay in the UK. Switching to a different type of visa does not disqualify you from applying for ILR, but it may delay the process because the clock may be ‘reset’. In other words, the time already spent in the UK on a spouse visa may not contribute towards the residence requirements for a different ILR visa route.
Another option is the 10-year-long residency route to ILR. If you have already built up 10 years in the UK on a spouse visa plus any other previous visas, you may be able to apply for ILR. If you have not yet reached the 10 years needed, you can add the years spent on your spouse or dependant visa to the time spent on your new visa to reach the 10 years required. This is an excellent option for those who have already been in the UK for more than 5 years.
What are the key differences between separation and divorce for immigration purposes?
When it comes to immigration law, separation and divorce are treated differently. Separation can mean that you are legally married but no longer living with your spouse. It may also refer to the separation of unmarried partners. Divorce, on the other hand, refers to the formal end of a marriage.
In order to apply for a spouse or dependant visa, applicants must be married, in a civil partnership, in a relationship that is akin to marriage for at least 2 years.
In terms of ILR eligibility for those on a spouse or dependant visa, there is no difference between divorce or separation – both require visa holders to switch to another visa type if they wish to stay in the UK and later gain ILR.
Applying for ILR without a sponsor post-divorce UK
Steps to apply for ILR if your relationship with your sponsor has ended
If your relationship has ended due to divorce, dissolution, or separation, you may need to:
- Apply for ILR under the 10-year ILR route if you have already lived continuously in the UK for 10 years.
- Switch to a different visa (if you don’t qualify for ILR under the 10-year route).
- Wait until you meet the residency requirement.
- Gathering evidence of your residency in the UK.
- Apply for ILR.
Demonstrating financial independence for ILR after divorce UK
When applying for Indefinite Leave to Remain after separation or divorce in the UK, you may need to meet certain financial independence requirements. The exact rules will depend on the visa you currently hold and the ILR pathway you are on. For example, if applying for ILR on a Skilled Worker visa, you must have a salary of £25,600 per year, £10.10 per hour, or the ‘going rate’ for the type of work you do. The salary threshold may be lower if you have a PhD or a job in a shortage occupation.
ILR for separated spouses: special considerations
What happens if you are separated but not legally divorced?
Separation without a formal divorce will still impact your ILR application if you are on a spouse or dependant visa. Remember, one of the key requirements is that you are still in a relationship with your partner, living with your partner, and you must genuinely intend to remain together once you have ILR.
Impact of domestic abuse on ILR applications
Special provisions within the UK’s immigration rules recognise the vulnerability of individuals whose relationship ends due to domestic abuse. If your marriage or partnership ended because of domestic violence or abuse, you may be able to apply for ILR without meeting the standard requirements. This is known as the ‘Domestic Violence Concession’. Domestic violence may include emotional, psychological, physical, sexual or financial abuse. It may also include threatening or controlling behaviour to try to harm, isolate or frighten someone.
How to apply for ILR if your relationship has ended due to domestic violence
You can apply for ILR due to domestic violence as soon as your relationship breaks down. There is no need to extend your visa or wait until your visa expires. You must be able to show that your relationship broke down because of domestic violence or abuse from your partner or your partner’s family. Evidence of the abuse may include police reports, medical records, or court orders.
Necessary documents and legal protection for victims of domestic abuse
ILR applicants who have been victims of domestic abuse are strongly advised to seek assistance from a family immigration lawyer who can prepare and present a strong case on their behalf. They may gather evidence in the form of reports from the police, statements from support organisations, medical reports, and evidence of any legal actions taken.
Indefinite Leave to Remain post-divorce UK: Timeline and application process
There are several steps involved in applying for ILR post-divorce. The exact process will depend on your circumstances and the ILR pathway you are on. The main steps are as follows:
- Speak to an immigration Solicitor who can advise on the best route to ILR following your divorce or separation
- Ensure you qualify for ILR before applying.
- Gather any necessary documents (financial, legal, residential).
- Prepare and submit your ILR application online.
- Pay the application fee
- Submit any documents requested by the Home Office, and
- Wait for a decision from the Home Office.
Expected processing times and possible delays
Processing times for ILR applications can vary, but typically, you can expect a decision within six months. Delays may occur if additional documentation is requested or if the Home Office wishes to interview you. This is why it is so important to ensure that your application is prepared carefully and fully before it is submitted.
Avoiding common pitfalls in the post-divorce ILR application process
Most refusals arise simply because applicants do not meet the requirements or they have not submitted a complete application. From our experience, the most common reasons for refusal are as follows:
- Not meeting the residency requirements
- Not providing sufficient evidence of domestic abuse
- Excessive absences from the UK
- Not meeting the financial requirements, and
- Not providing details of convictions, etc.
What happens if your ILR application is refused after divorce?
Appealing a refusal of your ILR application
If your ILR application is refused by the Home Office, you may have the right to appeal. Your decision letter will explain your rights and what to do next.
Options available if your application is unsuccessful
If appealing is not open to you, you may able to:
- Lodge an administrative review (you must apply within 28 days) if you believe a mistake was made by the Home Office, or
- Switch to another visa category (e.g. work visa)
Can I lose my indefinite leave to remain if I divorce?
You will not automatically lose your indefinite leave to remain status after divorce. But it depends on how your ILR was granted. The Home Office will review your case if you obtained your ILR through a spouse visa and had a divorce after indefinite leave to remain to make sure there is no misrepresentation in your application. However, if your ILR was granted on other grounds, such as long residence or work, your marital status probably won’t affect your ILR status.
Visa categories that support ILR applications post-divorce
Switching to another visa category
If your marriage has ended and you are no longer eligible under a spouse visa, you may be able to switch to another visa, such as a work visa if you have employment, a parent visa if you have children in the UK, or a business visa if you are an entrepreneur.
How your visa type affects your eligibility for ILR after divorce
The visa type you switch to will determine your eligibility for ILR. Work visas, for example, often lead to ILR after 5 years, while the Innovator Founder visa can lead to ILR after just 3 years.
Final words
Securing your future in the UK after a divorce may seem daunting, but with careful preparation and the right legal advice, it is entirely possible. Whether you need to demonstrate financial independence, apply under the Domestic Violence Concession, or consider the 10-year route to ILR, planning ahead is crucial. Always ensure that you have the necessary documentation and seek professional assistance from a family immigration lawyer to handle the complexities of UK immigration law successfully on your behalf. Doing so will enable you to focus on yourself and your children following your divorce or separation.
