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Thomas
Thomas, Solicitor
Category: UK Immigration Law
Satisfied Customers: 6310
Experience:  BA (Hons), PgDip, Practising Solicitor
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Hello, Im married to british girl since 2009. We have

Customer Question

Hello,

I`m married to british girl since 2009. We have son. I want to get divorced. My visa expires in January 2014. Can I divorce her and ask for visa and pernament residence before applying for it (before January 2014)?
Submitted: 1 year ago.
Category: UK Immigration Law
Expert:  Thomas replied 1 year ago.
Hi,

Does your wife want a divorce?

Are you on a spouse visa?

Tom
Customer: replied 1 year ago.

I dont think She wants it but I have to do it as I met new girl.


Yes spouse visa

Expert:  Thomas replied 1 year ago.
Thanks.

For what period was your spouse visa granted?

When did you arrive in the UK on your spouse visa?

Tom
Customer: replied 1 year ago.


I married her in 2002 in mosque, I was already in UK.


We register our marriage in 2009 under UK law.


 

Expert:  Thomas replied 1 year ago.
Hi,

What visas were you on before you married here?

When did you switch to a spouse visa?

Tom
Customer: replied 1 year ago.


I didnt have visa before, now Im not sure if its spouse visa or the normal one

Expert:  Thomas replied 1 year ago.
Hi,

Did you apply for your current leave to remain after you married your current wife?

Tom
Customer: replied 1 year ago.


yes

Expert:  Thomas replied 1 year ago.
Hi,

When approximately did you apply for your current leave to remain?

Tom
Customer: replied 1 year ago.


straight after marriage max march 2009

Expert:  Thomas replied 1 year ago.
Hi

Thanks for your patience.

Basically, before you do anything you should have a consultation with an immigration solicitor to examine your passport and immigration history.

If you switch to a spouse visa in 2009 then you would have done so under the old rules. This means that you would have been eligible to apply for Indefinite Leave to Remain once you have had been married to her for a period of two years.

I suspect you are on a spouse visa. If you are then (if you did not intend to divorce) you would be able to apply for ILR now so that you could permanently remain in the UK.

However, a requirement to apply for ILR is that you must intend to remain married to your sponsor wife, which you do not intend to do and it is not a good idea to deceive the UKBA by saying that you are.

If you propose to divorce your wife then you would have to switch to another category of visa. If you have a child and will maintain a relationship with the child after divorce then the most likely category that you could apply for is as the parent exercising a right of access to a child in the UK:-
http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/part7/

For this, you need to demonstrate that you have a right of access to a child who will remain in the UK.

Therefore, in order to apply for this category you would have to have a contact or residence order for your child under the Childrens Act. This is something that can be applied for at Court or agreed with your spouse and then documented at Court, which is why you will need a solicitor

Ultimately, if you are able to show your continued contact with the child in this way and are also able to show that you will be able to support and accommodate yourself without the need to access public funds then you will get further leave to remain. However, if your wife becomes difficult about your access to the child once you tell you her intend to divorce then it could get very complicated, very quickly and make it difficult for you.

You need to treat carefully which is why you should have a consultation directly with a local immigration solicitor.

If you obtain new leave to remain before your current leave to remain expires then your leave to remain should remain unbroken. This means that you may be eligible to apply for indefinite leave to remain 5 years from the date you were granted you current leave to remain after marrying your wife.


Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

If you are not willing to rate my answer as OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE then allow me to assist further by replying asking what clarification you require rather than rating my answer at levels below.

If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
Expert:  Thomas replied 1 year ago.

Hi,

I note that you have not rated my answer at "OK Service" or above. This reflects very badly on me and means that I do not receive credit for the time I have taken to answer your question.

The answer is correct according to the law, but is there any further clarification that you require in order that you will change your rating to "OK Service"?

I just want to ensure that you are satisfied.

Kind regards,


Tom
Customer: replied 1 year ago.
I have discretionary leave and this is my fifth year as I pass 3 years and renewed another 3 years and 1 year left.
I get it under article 8 of humain been right.
Does it change my situation?
Thanks
Expert:  Thomas replied 1 year ago.
Hi

If the discretionary leave was granted on the basis of your marriage then it would not materially change the situation because you would still have to be married to your spouse in order to apply for indefinite leave to remain.

If discretionary leave was granted on the basis of your wife and child then I should think that you would be able to apply for definite leave to remain once you have reached 5 years from the date you first received your discretionary leave. This may be your best way forward but you need to check the application you made and the basis on which the discretionary leave was granted.

As I say you really do need to take your documentation to a local immigration solicitor for a specific consultation because they will be able to look at your documents and say definitively what of the above ways is the best to secure a indefinite leave to remain for you.

Please remember to rate my answer as okay service or above. You did not do that last time and you rated it poor service. This reflects extremely badly on me and means that I get absolutely no credit whatsoever for the time I have taken to answer your question.

Tom
Expert:  Thomas replied 1 year ago.
Hi

You have not rated my answer as okay service or above. This means I do not get credited for the time I have taken to answer your question. Please rate my answer as okay service or above

Tom
Expert:  Thomas replied 1 year ago.
Hi

You have not rated my answer as okay service or above. This means I do not get credited for the time I have taken to answer your question. Please rate my answer as okay service or above

Tom

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