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Spouses/Partners

Spouse, fiancé (e), unmarried partner and civil partner applications

Individuals wishing to come to the UK on the basis of their relationship to a British citizen or person present and settled in the UK, must apply for leave to enter or leave to remain in the UK in that capacity.

Non- EEA citizens and visa nationals do not have an automatic right to settle in the UK on the basis of their relationship.

Spouses & civil partners

The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:

  • the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and
  • the applicant provides an original English language test certificate in speaking and listening from an English language test provider approved by the Secretary of State for these purposes, which clearly shows the applicant’s name and the qualification obtained (which must meet or exceed level A1 of the Common European Framework of Reference) unless  the applicant is aged 65 or over at the time he makes his application; or the applicant has a physical or mental condition that would prevent him from meeting the requirement; or there are exceptional compassionate circumstances that would prevent the applicant from meeting the requirement; or
  • the applicant is a national of one of the following countries: Antigua and Barbuda; Australia; the Bahamas; Barbados; Belize; Canada; Dominica; Grenada; Guyana; Jamaica; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Trinidad and Tobago; United States of America; or
  • the applicant has obtained an academic qualification(not a professional or vocational qualification), which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Master’s degree or PhD in the UK, from an educational establishment in one of the following countries: Antigua and Barbuda; Australia; The Bahamas; Barbados; Belize; Dominica; Grenada; Guyana; Ireland; Jamaica; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and The Grenadines; Trinidad and Tobago; the UK; the USA; and provides the specified documents; or
  • the applicant has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Master’s degree or PhD in the UK, and provides the specified evidence to show he has the qualification, and UK NARIC has confirmed that the qualification was taught or researched in English, or
  • has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Master’s degree or PhD in the UK, and provides the specified evidence to show he has the qualification, and that the qualification was taught or researched in English.
  • Or the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL; and
  • the parties to the marriage or civil partnership have met; and
  • each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and
  • there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
  • the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
  • the applicant holds a valid United Kingdom entry clearance for entry in this capacity; and
  • the applicant does not fall for refusal under the general grounds for refusal.

 

Financial Requirements

As of 9th July 2012 a new financial requirement was introduced. Applicants are required to demonstrate that they can adequately maintain themselves in the UK without recourse to public funds. The sponsor (settled or British national) will need to demonstrate that he or she (or both jointly if the individual is legally present in the UK) has a gross annual income of at least £18,600. An income of at least £22,400 is required if the individual has a dependent child who is not settled in the UK, or who is not British. £2,400 is required for each additional child.

If the sponsor is in receipt of the following benefits, he or she will only be required to show that the applicant can be “adequately maintained”. The rules state:

Under paragraph E-ECP.3.3., E-LTRP.3.3., E-ECC.2.3. or E-LTRC.2.3 (partners on a 5-year route to settlement under Appendix FM and their children), to be able to meet the financial requirement through adequate maintenance, the applicant’s partner or parent’s partner must be receiving one or more of the following:

  • Disability Living Allowance.
  • Severe Disablement Allowance.
  • Industrial Injury Disablement Benefit.
  • Attendance Allowance.
  • Carer’s Allowance.
  • Personal Independence Payment.
  • Armed Forces Independence Payment or Guaranteed Income Payment under the
  • Armed Forces Compensation Scheme.
  • Constant Attendance Allowance, Mobility Supplement or War Disablement Pension under the War Pensions Scheme

Unmarried and same-sex partners

The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the unmarried or same-sex partner of a person present and settled in the United Kingdom or being admitted on the same occasion for settlement, are that:

  • the applicant is the unmarried or same-sex partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement and the parties have been living together in a relationship akin to marriage or civil partnership which has subsisted for two years or more
  • the applicant provides an original English language test certificate in speaking and listening from an English language test provider approved by the Secretary of State for these purposes, which clearly shows the applicant’s name and the qualification obtained (which must meet or exceed level A1 of the Common European Framework of Reference) unless the applicant is over 65 or suffers from a physical or mental condition that would prevent him from meeting the requirement; or there are exceptional compassionate circumstances that would prevent the applicant from meeting the requirement; or
  • the applicant is a national of one of the following countries: Antigua and Barbuda; Australia; the Bahamas; Barbados; Belize; Canada; Dominica; Grenada; Guyana; Jamaica; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Trinidad and Tobago; United States of America; or
  • the applicant has obtained an academic qualification (not a professional or vocational qualification), which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Master’s degree or PhD in the UK, from an educational establishment in one of the following countries: Antigua and Barbuda; Australia; The Bahamas; Barbados; Belize; Dominica; Grenada; Guyana; Ireland; Jamaica; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and The Grenadines; Trinidad and Tobago; the UK; the USA; and provides the specified documents; or
  • the applicant has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Master’s degree or PhD in the UK, and
  • provides the specified evidence to show he has the qualification, and UK NARIC has confirmed that the qualification was taught or researched in English, or
  • has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Master’s degree or PhD in the UK, and provides the specified evidence to show: he has the qualification, and that the qualification was taught or researched in English. Or
  • the applicant is the unmarried or same-sex partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties have been living together outside the United Kingdom in a relationship akin to marriage or civil partnership which has subsisted for 4 years or more; and
  • the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL; and
  • any previous marriage or civil partnership (or similar relationship) by either partner has permanently broken down; and
  • the parties are not involved in a consanguineous relationship with one another; and
  • there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
  • the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
  • the parties intend to live together permanently; and
  • the applicant holds a valid United Kingdom entry clearance for entry in this capacity; and
  • the applicant does not fall for refusal under the general grounds for refusal.

The Important thing to note is that applicants must have been living in a relationship akin to marriage for at least two years regardless of whether the partners are heterosexual or homosexual.

Fiance(e)s and proposed civil partners

Applicants must prove that they plan to marry or become civil partners within 6 months of arriving in the UK. The requirements are otherwise the same as the spouse/civil partner requirements.

Immigration Health Surcharge

As of 6th April 2015, non-EEA applicants who are applying to enter the UK for more than six months will be required to pay an ‘immigration health surcharge or IHS. This will be in addition to the visa fees and will be payable at the point of payment for the visa application.

Spouses or unmarried partners of EEA nationals

Applicants must apply for an EEA family permit prior to their arrival in the UK. This is normally valid for one year after which the applicant can apply for a UK residence permit, usually issued for five years. An application for indefinite leave to remain can be made after 4 years continuous residence in the UK.

Surinder Singh cases

The European Court of Justice (ECJ) in the case of Surinder Singh held that a British national and their third country national family members can, in certain circumstances, benefit from EU law. Essentially, it held that nationals of a member state who go with their non-EEA family members to another Member State to exercise a Treaty right in an economic capacity, will on return to their home state, be entitled to bring their non-EEA family members to join them under EC law. (*Source taken from the UK Border Agency website)

Outcome

If an application under any other above categories is successful, then the applicant will be granted a visa for 2 ½ years visa initially. The applicant will qualify for indefinite leave to remain (settlement) after completing 5 years under this route.

Common grounds for refusal

We have come across many cases where individuals have been denied a visa for failing to meet the requirements according to the entry clearance officer (ECO) at the British post abroad. Most decisions will carry a right of appeal that must be exercised within 28 calendar days of receiving the decision.

Some of the most common reasons for refusal are cited as follows:

  1. Lack of sufficient documents including:
  •         No evidence that UK based sponsor can maintain the applicant
  •         Missing documents to establish the financial requirements are met
  •         Lack of evidence to show adequate accommodation or that there will not be overcrowding
  1.  Marriage not conducted lawfully or accepted as genuine including:
  •         Lack of contact between sponsor and applicant (i.e. emails/telephones bills/letters)
  •         Proxy marriages not conducted in accordance with laws of the country in which they took place

Other options

If applicant’s are unable to satisfy the requirements as above, they may still be able apply for leave to remain with their family member in the UK on the basis of human rights grounds. For instance, where the applicant can demonstrate that that there are compelling and compassionate circumstances which prevent them from continuing with their family life abroad

 

Contact Us

At Descartes Solicitors our experienced lawyers can assist you whether you are making an initial or fresh application, whether you have been refused and wish to exercise a right of appeal or even where you have been denied a right of appeal.

For further information please contact us on 0208 995 3556 or on 0844 556 9901. You can also email us at email us at info@descartessolicitors.co.uk or complete our enquiries box through this website.