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UK_Lawyer
UK_Lawyer, Solicitor
Category: UK Immigration Law
Satisfied Customers: 2458
Experience:  I am a qualified solicitor and an expert in UK law.
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I am a British citizen and my husband is South African. We

Customer Question

I am a British citizen and my husband is South African. We moved to the UK 2 years ago and have not been living together as we want a divorce. Can I divorce him without him getting deported as we have a son together?
Submitted: 5 years ago.
Category: UK Immigration Law
Expert:  UK_Lawyer replied 5 years ago.
Hi thank you for your question.

What visa is your husband currently on?


Customer: replied 5 years ago.
hi, he is on a spousal visa...
Expert:  UK_Lawyer replied 5 years ago.
When is his spouse visa expiring?

If he is on a spouse visa and you divorce then this would be a change of circumstances which would mean his visa will be curtailed and he would need to return to south Africa.

If your divorce occurs prior to him having obtained indefinite leave to remain then the ukba will be able to curtail his visa. If this is the case then he would need to apply for discretionary leave to remain under the zambrano case. Your husband would need to apply on the basis of his relationship with his child.

The UK Border Agency assesses each application on a case by case basis and will make a decision as to whether an application is likely to come within the scope of the judgment in Ruiz Zambrano on the basis of the evidence submitted.

In order for a person to demonstrate that they potentially come within the scope of the judgment the following criteria need to be met:

*     there is evidence that the child is under the age of 18, and
*     there is evidence that the child is a British citizen, and
*     there is evidence of a relationship between the child and the parent/guardian/carer, and
*     there is evidence of the child's dependency on the third country national parent/guardian/carer (care responsibilities, court orders are examples)

If you can satisfy the above requirements then he would be given discretionary leave to remain, otherwise once you divorce you will need to inform the ukba and they will curtail his visa and he would need to return to south Africa.

I hope this answers your question if so kindly click ACCEPT, if you do not I will not get credited for my time.

Kind regards,

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