Separating while on settlement visa

[Jowels]

My wife has been in the UK for the past 6 months on a family settlement visa. Unfortunately, things are not working out and it's looking increasingly likely we will separate. If we do, would she lose her right to remain in the UK? She has met another fella, but my understanding is that he couldn't sponsor another visa application for her. We have a young son, but I won't sign over custody so I doubt she'll be able to apply for a visa as the parent of a dependent child.

To be honest I'm not sure whether I want her to remain in the UK. At the same time, I don't want my son to grow up without a mother. What a miserable time...

[jacksam]

Geez Man, feel for you. Only a brief description you gave, but one thing stood out. The fact that you have yours Sons interest as paramount. Often this not the case where one side has hooked up with someone. Take my hat off to you son.

My advice would be to try as much as possible to be flexible. If she stays in UK (even with another bloke) it can be in sons interest and also yours. I had two young sons , both under 3 . wife at time got the new model. I pretty much raised the boys after that. At the time wished she lived in another country. Of course time proved that wrong. I would be helping her stay in UK if she wants. Good luck with tough time.

Edited December 3, 2014 by jacksam

[7by7]

If you and she separates then she loses her right to remain in the UK; although it is unlikely that UKVI will come looking for her!

When her current LTR expires she will, of course, not be able to extend it and so will have to leave or be in the UK illegally.

She cannot apply to remain in the UK on the basis of her new relationship, but could, of course, apply for a new settlement visa in Thailand based upon that; provided she met all the requirements for same.

However as she has a British son living with you in the UK she can apply for an access to child visa. I'm not sure, though, if she can switch to this in the UK or whether she would have to return to Thailand and apply there.

[bobrussell]

I suspect that she will be able to apply for Discretionary Leave To Remain on the grounds of the child s best interest. This would normally be done in the UK. It would be the child that has the right to contact with the mother, not the right of the mother to have contact with the child. In reality they are usually one and the same.

Access/residency arrangements for the child will be sorted out as part of the divorce. Clearly should a non-EU parent be considered unfit to have contact then this leave is pretty unlikely to be granted.

"the best interests of the child must be a primary

consideration (although not necessarily the only consideration) when making decisions

affecting children, whether the child is the direct subject of the application, or an adult

applicant is the primary parent or guardian of a child in the UK."

This suggests the parent could fail if he or she is not considered the 'primary' parent but I suspect this is unlikely to be the result following an 'ordinary' divorce.

If possible mediation and agreement is going to reduce the legal bills especially if your wife's solicitor feels residency would strengthen her case for DLR. Talk it all through with your legal advisor before stirring things up!

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/312346/discretionaryleave.pdf

As far as I know this is still the most up to date document.

I am not a legal expert but a fairly close member of the family has been through a broadly similar process.

(As advised by 7by7 it is pretty unlikely that UKVI will rock the boat until her present visa is due to expire)

Edited December 3, 2014 by bobrussell