Formation and breakdown of marital relationships: An immigration and family law perspective

In this 3-part series by Amna Ashraf (immigration) and David Coutts (family law), we cover the unique dynamics involved in the formation and breakdown of relationships where one partner is a foreign national and there are children and assets to consider. 

In the first insight, we covered  all things formation – marriage, civil partnerships, location, visas, pre-nup and the acquisition of assets. In the second insight, we covered separation and divorce, and how these processes interact with immigration considerations. In this third and final insight, we discuss additional considerations where a couple has children together. We will also cover implications of divorce on a migrant partner in the context of visa routes and the ability to stay in the UK on the basis of their child.

Different immigration status 

Family cases involving differing immigration statuses can feel particularly uncertain and often raise common questions which we have sought to address in this article. The most common visa statuses for an adult migrant are:

1. Spousal visa – the migrant is married to a settled person or a British citizen
2. Fiancé(e) visa – the migrant is engaged to a settled person or a British citizen
3. Independent visa – examples of this can be a work visa or student visa

The reason why this is relevant to children and their care arrangements is that where their parents can (or cannot) live can have a significant bearing on their lives, where they will grow up and the time that they are able to spend with each parent.

When would a Scottish court make a decision relating to a child’s care?

The expectation and hope is that parents will be able to agree on decisions relating to their child, whether those decisions are affected or not by immigration issues. A separation or parenting agreement can be entered to provide clarity on how arrangements will operate, how financial obligations in respect of the child will be met, and how decisions should be made in the future.

If parents are unable to agree on matters relating to their child, the court may be asked to adjudicate. The Scottish courts can do so if:

1. the child is “habitually resident” in Scotland (i.e. living here);
2. the child is present in Scotland and urgent orders are needed for their protection (provided the child is not habitually resident in another part of the UK); or
3. the Scottish court is dealing with court proceedings between the child’s parents relative to their marriage or civil partnership. 

Scottish courts can be asked to make orders determining where a child lives (a “residence order”) and when a child should see the other parent (a “contact order”). Under the Children (Scotland) Act 1995, the court’s paramount consideration is always the welfare of the child.

Would a parent or child’s immigration status impact a Scottish court’s decision about a child?

Scottish courts do not automatically favour a British or settled parent. Many factors are considered by the court when determining what is in a child’s best interest, including: stability, the child’s routine, schooling, each parent’s ability to meet the child’s needs physically and emotionally, and the child’s views. A child’s immigration status is treated as one such factor.

A parent’s lack of settled status may also be relevant insofar as it affects practical matters (for example, risk of enforced removal or ability to remain in Scotland), but it should not be determinative. Courts will assess each case on its individual facts relevant to the child in question, and Scots law is clear that a child’s welfare, not nationality or immigration status, is the paramount consideration.

Could contact between a parent and child ever be denied?

The generally held view is that it is in a child’s best interests to have a meaningful relationship with both their parents, where safe for them to do so. Refusal of contact completely has a high threshold.

Direct contact may be denied or restricted where there is accepted evidence of:

• serious domestic abuse
• sexual or physical harm to the child
• chronic substance misuse
• persistent emotional harm or neglect
• significant risk of abduction

Even then, courts will often consider whether contact between the child and parent can take place in a safe environment, to mitigate the risk of any of the above risk factors, for example, supervised or indirect contact (such as letters or video calls).

Contact is relevant when it comes to the migrant’s immigration status. For example, if a migrant is here on a spousal or other independent visa, then provided they have direct contact or the child lives with them, they can apply to switch to ‘parent of a British child’ visa. They can be separated from the partner (evidenced by a separation agreement) and do not have to be divorced to apply for this visa. If granted, it would give them a status that is independent of the one reliant on their former partner or employer. The visa duration is 30 months, which can be extended once more, and then settlement applied for.  

Are children with dependant visas treated differently to those who are British/settled?

A child’s immigration status does not change how they will be treated by the courts. The court applies the same welfare test regardless of whether a child is British, settled, or on a dependant visa.

Immigration issues may pose practical issues, particularly where a move abroad is proposed or where a parent’s ability to remain in the UK is uncertain. The court should consider these factors only insofar as they impact the child’s welfare.

Conclusion

Relationship formation and breakdowns are extremely emotional, and there are many factors to consider. We hope our 3-part series helps navigate the complexities so that your journey can be guided. There will be additional nuances in each case which our teams are happy to guide you with. Please contact Amna Ashraf (immigration) or David Coutts (family law) to discuss your current circumstances.

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