Immigration and family law matters often overlap, particularly for individuals navigating the UK immigration system. This article explores common challenges our clients face in these areas. It is important to note that while the immigration rules referred to below apply across the UK, the family law advice is relevant only to England and Wales. The guidance below is general guidance and it cannot replace tailored legal advice.
Marriage and Divorce
The UK Home Office recognises any marriage that is legally valid in the country where it took place. For family law, the parties to the marriage must have complied with the procedures required in the country in which they were married and they must have also had the capacity to marry under the laws of their country of domicile. Domicile is where you have your permanent home.
For couples seeking divorce in England and Wales the following criteria must be met:
- You have been married for at least one year.
- The relationship has irretrievably broken down.
- Your marriage is legally recognised in the UK (including same-sex marriages).
Either you or your spouse has a sufficient connection to England and Wales, such as:
- You or your spouse are domiciled in England and Wales.
- Your spouse is habitually resident in England and Wales
- You are habitually resident in England and Wales and have lived here for at least 12 months before applying for divorce.
The terms “habitually resident” and “domicile” have specific legal definitions and you should seek legal advice if there is any uncertainty over your own personal circumstances.
Unmarried Partners
UK law does not recognise common law marriage. However, unmarried couples can apply for visas together as partners if they have lived together for at least two years and they can provide evidence of that. All visa categories require the relationship to be genuine and subsisting, with couples living together as a family unit.
In cases where a couple share parental responsibility for their children but they are no longer in a relationship, a dependent partner cannot apply for a partner visa. The children of separated couples will not qualify for UK visas unless the parent moving to the UK has sole responsibility for the children.
Sole Responsibility and Dependent Children
Applicants seeking to bring dependent children to the UK must generally apply together as a family unit. If one parent remains abroad, the UK-based parent must demonstrate that he or she has sole responsibility for a child, both in practice and legally. Sole responsibility typically involves exclusive day-to-day control over the child’s upbringing. A court order granting sole responsibility is often required.
If a parent has sole responsibility and wishes to relocate with a child to the UK, the other parent’s rights to see that child and make decisions for him or her may be curtailed. Without sole responsibility, the child may not be eligible to join the parent coming to the UK.
Parental Responsibility in Family Law
In England and Wales, both parents typically have parental responsibility to a child if they are recorded on the child’s birth certificate. Parental responsibility means that a parent has the right to be consulted on key decisions, such as the child’s health and education. If one parent wishes to move abroad with the child, they must have the other parent’s written consent if they share parental responsibility.
If an unmarried father is not named on a child’s birth certificate, only the mother has parental responsibility. Married parents both have parental responsibility for a child automatically.
Surrogacy and Parental Orders
For individuals using surrogacy abroad, it is essential to understand that foreign court orders transferring parentage are not recognised in England and Wales. Under English law, the surrogate mother is the child’s legal mother, and her husband (if applicable) is the legal father.
Parents must apply for a parental order through the English/Welsh courts to establish legal parenthood in the UK. This can be complicated if the parents have been living outside of England and Wales. The court will only accept an application if at least one parent is domiciled in England. For instance, if a returning British citizen and his or her partner who is not British used a surrogate in another country, they may need to return to England and Wales to secure parental rights through the court before applying for a visa for the child and partner (usually, leave outside the Immigration Rules).
Child Abduction and The Hague Convention
International child abduction is a significant concern in cases where parents are from different countries. If one parent takes a child from their habitual residence without the other parent’s consent, the left-behind parent may invoke The Hague Convention. This international agreement ensures that abducted children are returned to their country of habitual residence, allowing local courts to resolve custody disputes.
The UK is a signatory to The Hague Convention, so the courts here will return a child to another country which is also a signatory. The court may refuse to return a child if:
- The child has been settled in a new environment in England and Wales for over a year.
- The left-behind parent consented to the removal.
- Returning the child poses a grave risk of harm.
- The child objects to returning and is of sufficient age and maturity.
Immigration and Family breakdown
An example of a crossover between immigration and family law is where a family moves to the UK through the Skilled Worker visa route and the marriage then breaks down. The dependent spouse may lose their immigration status if the relationship is no longer genuine and subsisting and may be compelled to return to his/her country of origin. Under family law, if the child’s habitual residence is in England and Wales, the parent remaining in England and Wales could apply for an order preventing the leaving parent from taking that child abroad.
At our firm, we understand that immigration and family law issues can be highly complex and deeply personal. Our immigration and family law teams offer joined up tailored legal advice to navigate these legal complexities with professionalism and sensitivity.
Please reach out to Efrat Shemesh of our immigration department on ef@branchaustinmccormick.com or Saika Alam of our family law department on sa@branchaustinmccormick.com for expert advice and assistance with your specific case.
