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Immigration and marriage, civil partnership and cohabitation Advice for non European husbands, wives, civil partners, partners and family members of European nationals on immigration rights in the UK
1.1 Law Centre (NI)The purpose of the Law Centre is to promote social justice and provide specialist legal support to advice giving organisations and disadvantaged individuals. We deliver legal services to members in community care, employment, housing, immigration, mental health and social security and support the work of advice agencies through advice, casework, training, information and publications. We aim to work closely with our membership of independent advice giving agencies and associate members. Associate members include social services, probation offices, solicitors’ practices, trade unions and community based organisations. We work with local, regional and specialist independent advice agencies in partnership with Advice NI and Citizens Advice. Immigration advice The Law Centre has limited resources in relation to the demand for immigration assistance, and therefore cannot provide representation in straightforward leave to remain or permit applications. If you need more immigration advice once you have read this document, contact our advice line between 9.30am and 1pm on telephone number 028 9024 4401. It is extremely difficult to give precise, general advice on immigration law, but we hope that this information will be useful to you. 1.2 British/Irish citizenship Entitlement to British citizenship is a complex issue. If you are in doubt about your status, you should get specialist advice. All persons born before 1 January 2005 anywhere on the island of Ireland (ie in the Republic of Ireland or in Northern Ireland) are entitled to Irish citizenship, irrespective of their parents’ nationality or immigration status. People born on the island of Ireland after 1 January 2005 are only entitled to Irish citizenship if one of their parents:
Time spent in Ireland as a student or asylum seeker will not be included in calculating the period of residence. This is a complex issue and specialist advice should be sought if there is doubt. 1.3 Dual citizenship Many residents of Northern Ireland are entitled to both UK and Irish citizenship. Holding more than one passport is allowed under UK and Irish law. People who are entitled to both Irish and British citizenship can legally have both passports if they wish. Holders of other nationalities considering dual citizenship may wish to check with their own embassy or consulate if there is any restriction or implications under their nationality laws. 1.4 Definitions: spouse, civil partner, partner The term ‘spouses’ means husbands or wives who are married to each other. Civil partners are same sex couples who register a civil partnership (or equivalent union in another country). It does not matter where the marriage or civil partnership registration takes place, so long as the legal procedure involved is recognised in the country in which it takes place. Under UK immigration law, ‘partners’ who have lived together as a couple for more than two years have the same rights as spouses and civil partners. This includes same sex couples as well as heterosexual couples. The term ‘partners’ is used in this leaflet to mean a couple who have been co-habiting for more than two years in accordance with the immigration rules. For EEA family permits and residence cards, unmarried partners must demonstrate that they are in a durable relationship. We have therefore used the term ‘partner in a durable relationship’ where appropriate to describe these relationships.
Two possible applications can be made, either within:
It may be possible to lodge an application outside the Rules and Regulations but this can be complex and you should seek specialist advice. Before explaining in detail the procedures and practicalities of the two possible applications, the chart below seeks to summarise and compare the procedures and requirements of these two options. Many issues are not covered here, such as the death of the British/EEA spouse/civil partner/partner, appeals etc. On these issues, further specialist advice should be sought.
3.1 Spouses, civil partners and partners of UK citizens or of persons settled in the UK, which automatically includes Irish citizens, can initially apply to the UK immigration authorities for a 27 month visa under the UK Immigration Rules. This is also referred to as ‘probationary’ period. 3.2 If the foreign spouse/civil partner/partner is not yet in the UK, the application for leave (or permission) to enter the UK as a spouse/civil partner/partner of a UK citizen or a person settled in the UK can be made to the British embassy, consulate or high commission in the country in which s/he is living. A fee of £585 is charged for this application, whether or not it is successful. 3.3 The Entry Clearance Officer who considers the application for a visa will have to be satisfied that the couple intend to live together permanently and that they can maintain and accommodate themselves without ‘additional recourse to public funds’. This means that the applicants will have to show that they have enough money and adequate housing for themselves, without claiming any social security benefits for the non UK spouse/civil partner/partner. There are certain exceptions to this rule and further specialist advice should be sought. Any benefit claim for the settled or UK spouse/civil partner/partner and/or their children is not affected by this restriction on the foreign spouse. 3.4 Applications can only be made for leave to remain as a spouse/civil partner/partner from within the UK if the foreign spouse/civil partner/partner is already here legally on a visa that is for more than six months. The only exception to this is people in the UK holding a six month fiancé(e) or proposed civil partner visa, who marry or form a civil partnership during this time (see paragraph 4 below). 3.5 The form for applications made within the UK for leave to remain as a spouse/civil partner/partner is FLR(M). It can be obtained from the UKBA website: www.ukba.homeoffice.gov.uk. The fee is presently £465 for postal applications including a separate £50 per each dependent child or £665 to have the application dealt with faster via a premium service. These forms are updated every six months. It is important to ensure that a valid form, correctly completed, is submitted otherwise the application will not even be considered by the UKBA, and the applicant can therefore inadvertently become an overstayer. Original documents must be sent to the UKBA along with the application form. Photocopies are not accepted. We strongly advise that you keep copies of all documents and correspondence which you send to the UKBA and send any original documents by special delivery, keeping the docket to prove that they have been sent. 3.6 It is also very important that a valid application is submitted before the foreign spouse/civil partner/partner’s current leave to remain in the UK expires. If an application is submitted after a person’s leave to remain expires, even by one day, then that person becomes an overstayer. An overstayer may not have a right of appeal against a negative decision and will have a poor immigration history. This could result in the refusal of the present application as well as a refusal of any application to enter the UK in the future. The amendment to the Immigration rules which is called HC321 means that any period of overstaying exceeding 28 days will attract a mandatory ban on re-entry to the UK for between one and ten years, depending on how the departure from the UK was financed. There are some exceptions to these bans for spouses, civil partners, partners, fiancés and proposed civil partners. If you think this may be of relevance to you, you must seek specialist advice immediately. 3.7 During the period of this visa, the foreign spouse/civil partner/partner is entitled to take employment but no social security benefits can be claimed for her/him (subject to the exceptions mentioned above, at 3.3). 3.8 After residing in the UK in this capacity for 24 months, an application should be made for indefinite leave to remain in the UK with original supporting documentation. The UKBA may check that the couple is still living as a couple. Once indefinite leave to remain is granted, the foreign spouse/civil partner/partner will be allowed to access social security benefits and, of course, will be allowed to continue to be employed. 3.9 Applications for indefinite leave to remain must be submitted within the UK (‘in country’), on a valid completed form SET(M) (also available from the UKBA website - see paragraph 3.5 above) before the expiry of the initial two years leave to remain. This must be sent to the UKBA with the required fee and relevant original documents. At present, the fee is £820 including a separate £50 per each dependent child or £1,020 to have the application dealt with faster via a premium service. 3.10 Couples who have been married, civil partners or cohabiting partners and living together abroad for more than four years can apply straightaway for indefinite leave to enter and then remain in the UK if one of them is a UK citizen, an Irish citizen or otherwise settled in the UK and they travel to the UK together. They do not have to go through the probationary period.
4. UK VISAS: FIANCE(E)S/PROPOSED CIVIL PARTNERS 4.1 Fiancé(e)s and proposed civil partners of UK citizens, Irish citizens or people otherwise settled in the UK can apply for visas to come to the UK. These visas are usually for six months only, during which time it is expected that the couple will get married or form a civil partnership. It may be possible to extend this for a further maximum period of six months. In order to do this, you must explain to the UKBA why you did not get married or form a civil partnership during the first six months, and stating when you will be getting married or forming a civil partnership. Such applications must be made before the first visa expires. 4.2 Initial applications for fiancé(e) and proposed civil partnership visas cannot be made from within the UK. They can only be made to British embassies or consulates abroad. There is a fee of £585 for making a fiancé(e)/proposed civil partner visa application. 4.3 To obtain a fiancé(e)/proposed civil partner visa, the couple will have to show that they:
The fiancé(e)/proposed civil partner will not be allowed to take employment during the period of the fiancé(e)/proposed civil partner visa. Once married or having formed a civil partnership, an application to remain in the UK as a spouse/civil partner should be made on form FLR(M), see paragraph 3.5 above. 4.4 Non-EEA nationals who are already in the UK and who wish to get married or form a civil partnership in the UK must apply to the UKBA for permission to do so on form COA for a Certificate of Approval. There is no longer a fee attached to this application. If successful, the couple will have up to three months to notify a register of their intention to marry or form a civil partnership. If both parties to the proposed marriage or proposed civil partnership are non-EEA nationals, each must apply.
5. EUROPEAN ECONOMIC AREA FAMILY PERMITS 5.1 The European Economic Area (EEA) expanded in May 2004 and January 2007. Currently the EEA Member States are:
In order to be able to benefit from Community law, the EEA national must, among other things, be outside of her/his country of citizenship. It is for this reason that in Northern Ireland a person who holds dual British/Irish citizenship could rely on her/his Irish citizenship to support an application by a family member to enter the UK to reside with her/him. This is so even if that person has never been outside of Northern Ireland. The Asylum and Immigration Tribunal has suggested that in some aspects of the Regulations, it may be necessary to have revoked British citizenship in order to rely on the Regulations, but this is being challenged through the courts. Citizens from the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia, which joined the European Union in May 2004, are currently referred to as the A8 nationals. Citizens of Bulgaria and Romania, which joined the European Union in January 2007 are referred to as A2 nationals. Certain restrictions have been imposed on the first twelve months of some A8 and A2 nationals’ stay in the UK, a complete explanation of which is outside the scope of this document. However, their rights in relation to family reunion are explained at 5.5 below. Note: ‘Your Rights in Northern Ireland, a guide for migrant workers’, explains the rights of A8 and A2 nationals and restrictions on them. It is available on www.lawcentreni.org and www.nihrc.org. 5.2 Subject to the restrictions referred to above in relation to A2 and A8 nationals, citizens of the EEA countries are entitled to live and work in the UK under European law. Some members of the family of an EEA national have rights to enter, remain and work in the UK along with the EEA national worker even if they are not EEA nationals themselves. For example, if an Irish passport holder who is living and working in Northern Ireland has non EEA family members, they may be able to live here with her/him, irrespective of the family members’ nationality. Even if the Irish spouse/civil partner is not currently employed or self employed, it may be possible for her/him to qualify to bring her/his non EEA family member to the UK if s/he has:
5.3 In an exception to the general rule (see 5.1 above) where a UK citizen has resided and worked in another EEA member state and returns to the UK, her/his non EEA spouse/civil partner may be able to join her/him. This is since the case of Surinder Singh, which extended EEA rights in such instances. 5.4 The non EEA family members’ entitlement to remain in the UK exists under European law, irrespective of when the application for a family permit or residence document is made and irrespective of the UKBA delay in issuing the documents. The application to the UKBA is simply a request for evidence of these rights. 5.5 ‘Family members’, for the purposes of the EEA Regulations, is defined as:
However, it may be difficult to evidence these rights whilst the application is being processed. In recognition of this, the UKBA now issues a letter to applicants while their applications are being processed, confirming that they have a right to work. 5.6 Extended family members The Immigration (European Economic Area) Regulations 2006 (‘the Regulations’) set out the different categories of people who can be defined as “extended family members”. This includes a person who is in a ‘durable relationship’ with an EEA national. UK Border Agency defines a ‘durable relationship’ as one where the couple have resided together for two years or more. However, the Asylum and Immigration Tribunal has recently decided that living together for two years is only one factor that can be taken into account (it is not ‘determinative’). Therefore it may be possible to establish a ‘durable relationship’ even if the couple has been living together for less than two years. An application for a residence card on this basis will not have an automatic right to be granted but must be ‘facilitated’. It is a two stage process, the Secretary of State must first of all decide whether she considers that, for example, the couple are in a durable relationship. If she agrees that they are, she must then go on to consider whether she should exercise her discretion in their favour and issue a residence card to the non-EEA national. The Secretary of State must undertake an extensive examination of the personal circumstances of the applicant in this type of application. This is a complex application and specialist advice should be sought. Other relatives may qualify in certain circumstances. 5.7 Where the A2 or A8 national is in the first twelve months of stay in the UK then s/he is entitled to be joined in the UK only by her/his spouse/civil partner, their children who are aged under 21 or are dependent, and dependent relatives in the ascending line. One main difference of treatment compared to other EEA nationals is that A2 and A8 nationals do not benefit from the right to support applications from more distant relatives. 5.8 If UKBA recognises an individual as extended family member and issues a residence document, that person then becomes a 'family member' and has the same right to work and access benefits. However, until that time, an extended family member does not have any automatic right to work or access benefits while UKBA is processing the application for a residence card.
6. ApplYING for EEA family permit from abroad 6.1 EEA family permits (on a VAF5 form) are a type of entry clearance or visa allowing the holder to enter the UK. They can be issued ‘over the counter’ at British embassies/consulates abroad without payment of a fee. The Foreign and Commonwealth Office website, www.fco.gov.uk, lists the British embassies abroad with their telephone and fax numbers as well as email addresses. 6.2 Applications for EEA family permits must be made to the UK visa authorities abroad, despite being based on the fact that one spouse/civil partner/partner in a durable relationship has a European passport other than British. For dual Irish/British citizens living in Northern Ireland, an EEA family permit application is based on their Irish citizenship, so they will be required to produce their Irish passport as evidence of their Irish citizenship. Their British passport is not relevant to such an application, (see paragraph 5.1 above) unless relying on the circumstances referred to in paragraph 5.3 above. 6.3 Applicants for EEA family permits are required to show the following documents:
6.4 Following the decision of the ECJ in Metock and Others v Minister for Justice, Equality and Reform C-127/08, an applicant for an EEA family permit no longer has to demonstrate lawful residence in another EEA state or satisfy the requirements under the immigration rules. 6.5 Non-EEA family members have the right to enter the UK and to reside in the UK for the first three months if travelling with their EEA family member who is exercising Treaty rights, or in order to join a family member who is exercising Treaty rights.
7. ApplYING for residence card from within the UK 7.1 EEA family permits issued abroad are usually valid for six months. The family must travel to the UK during this time. Once in the UK:
Likewise, if the EEA or non EEA spouse/civil partner/partner in a durable relationship and/or other family members are already in the UK in some other capacity, an application can be made for the EEA registration certificate or EEA residence card. Unlike most other UKBA applications, it is not necessary to use a particular form in this case. However, UKBA has devised Forms EEA1 and EEA2 which request all relevant information and are easy to complete. EEA1 is for EEA nationals applying (naming their EEA family members). EEA2 is for applications by non EEA family members of EEA nationals. The procedure and requirements for both forms are the same. They are available on the UKBA website at www.ukba.homeoffice.gov.uk. This application is free. 7.2 The completed form should be sent to the UKBA address at the end of the forms. A copy of all documents submitted should be kept and they should be sent via special delivery. The evidence required is basically the same as that listed above at paragraph 5.11 along with passport-size photographs. The proof of employment in the UK can be provided by the employer signing the relevant section of the form. EEA registration certificate and residence cards are usually valid for five years. However, where the applicant has temporary employment or is seeking work, they may be issued for shorter periods. Renewed applications can be made at the end of the period granted, depending on the circumstances at the time. 7.3 Generally speaking, EEA rights can be exercised irrespective of a person’s previous immigration status (eg if s/he was here illegally before marrying or forming a civil partnership with an EEA national). Furthermore, there is no requirement that the non EEA family members entered the UK lawfully. 7.4 After five years, providing the EEA spouse/civil partner is still working and living in the UK and the couple have not divorced/dissolved their civil partnership, the EEA and non-European spouse/civil partner and family members will be able to apply for indefinite leave to remain in the UK. This is still the case if a couple is still married but not living together or if a divorce or dissolution was as a result of the non-EEA national being the victim of domestic abuse. The application can be made on Forms EEA3 and EEA4 which are available on the UKBA website. 7.5 In addition, there are other circumstances whereby a person retains the right of residence even though the marriage/civil partnership has been terminated/dissolved. Even if the couple divorce or dissolve their civil partnership, there may be circumstances, such as having children at school in the UK, in which a further EEA residence document can be issued. This area of law is often subject to change and development. Therefore a person in immigration difficulties should obtain expert advice (see paragraph 1.1).
8. POST NUPTIAL IRISH CITIZENSHIP & NATURALISATION 8.1 People who are married to an Irish citizen (but not civil partners) can apply for Irish citizenship through naturalisation once they:
8.2 Once Irish citizenship has been granted, the holder can then apply for an Irish passport. The details and forms for these applications can be obtained on the Department of Justice website: www.justice.ie, or by post: The Citizenship Section, Department of Justice, Equality and Law Reform, 13/14 Burgh Quay, Dublin 2. Telephone: 00 353 1 616 7700. Helpline operates 10.00 am - 12.30 pm Tuesdays and Thursdays. 8.3 There are currently delays of several months in processing these applications.
There are appeal rights where applications for visas, permits or residence documents are refused. However, they have very tight deadlines and can be complex. Seek legal advice without delay in such circumstances.
10. RIGHT TO MARRY OR FORM A CIVIL PARTNERSHIP A person wishing to get married or form a civil partnership in the UK has to give notice of intention to marry or form a civil partnership at the Registrar’s office. Notice of marriage or civil partnership in Northern Ireland can be made by post. The Immigration Rules include strict eligibility criteria before the notice to marry or form a civil partnership is accepted. These include:
The Law Centre would be interested to hear from people prevented from marrying or forming a civil partnership following the refusal to issue a Certificate of Approval by UKBA.
11. Useful websites and addressesLaw Centre (NI) 124 Donegall Street Belfast BT1 2GY. Phone 028 9024 4401. Western Area Office: 9 Clarendon Street, Derry, BT48 7EP. Phone 028 9023 9938. Citizenship Section, Department of Justice, Equality and Law Reform (Republic of Ireland), 13/14 Burgh Quay, Dublin 2. Telephone 00 353 1 616 7700. Websites UK Border Agency: www.ukba.homeoffice.gov.uk Foreign and Commonwealth Office: www.fco.gov.uk/en/ UK Visas: www.ukvisas.gov.uk/en/ Republic of Ireland Department of Justice: www.justice.ie Law Centre (NI): www.lawcentreni.org
Footnotes 1. See paragraph 5. 2. See also other requirements under para. 281 of the Immigration Rules, as updated on UKBA website. 3. It is possible to come within this definition when not employed or self employed; specialist advice should be sought in such circumstances. See definitions of ‘worker’ in the EEA Regulations, Citizen’s Directive 2004/58 and Articles 39 and 43 of the EU Treaty. 4. See Foreign and Commonwealth Office website www.fco.gov.uk/en/ for list of embassies and consulates with contact details and application forms. IMPORTANT NOTE Although every effort is made to ensure the information on these pages is accurate and up-to date, Law Centre (NI) cannot be held liable for any inaccuracies and their consequences. The information should not be treated as a complete and authoritative statement of the law. As immigration law changes frequently, it is important not to rely on briefings that are not up-to-date. Always check the date at the end of any article or briefing, check our website for updates (www.lawcentreni.org/EoR) and, if in doubt, contact the Immigration Unit at Law Centre (NI). It is illegal to provide immigration advice unless a qualified solicitor, barrister or agency accredited by the Office of the Immigration Services Commissioner.
© Law Centre (NI) May 2009 All rights reserved. No part of this publication may be reproduced, stored on any retrieval system or transmitted in any form by any means, including photocopying and recording, without the prior written permission of Law Centre (NI). |
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