Marriage and partnerships: UK Rules

Marriage, civil partnerships and unmarried partnerships: UK immigration rules

Advice on rights of entry to and stay in the UK under the Immigration Rules for non-European spouses/ civil partners/unmarried partners, of those settled in the UK.

CONTENTS

1. Introduction
2. Procedural comparison
3. Applying for a visa to enter the UK as a spouse/civil partner/partner
4. Applying for extended stay in the UK as the spouse/civil partner/partner
5. Applying for a visa to enter the UK as a fiance(e)/proposed civil partner
6. Indefinite leave to remain in the UK
7.  Appeals
8. Useful websites and addresses
9. Important note


1. INTRODUCTION 

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.

1.2 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 or 028 7126 2433

It is extremely difficult to give precise, general advice on immigration law, but we hope that this information will be useful to you.

1.3 Definition of terms used in this briefing

  • Spouse/civil partner: The term ‘spouse’ means husband or wife who is married. A ‘civil partner’ is in a same sex couple and has registered 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.
  • Partner: Under the UK Immigration Rules, a couple in an unmarried relationship who have lived together as a couple for more than two years, have the same rights as spouses and civil partners to apply to enter/remain in the UK. This includes same sex couples as well as heterosexual couples.  The term ‘partners’ is used in this leaflet to mean an unmarried couple who have been co-habiting in accordance with the Immigration Rules.
  • Settled: This briefing refers throughout to ‘persons settled in the UK’.  This term means a person who has been granted indefinite leave to remain in the UK. It automatically includes Irish citizens.
  • Sponsor: Various applications under the Immigration Rules require that there is a ‘sponsor’ settled in the UK.  In this briefing the term ‘sponsor’ means the spouse/civil partner/partner who is settled in the UK.
  • UKBA: UKBA is the UK Border Agency.  This is the department within the Home Office which processes all applications for permission to remain in the UK.  The UKBA website is www.ukba.gov.uk.

2. PROCEDURAL COMPARISON

2.1 A person who is a British citizen  and who also holds the citizenship of another EU Member State, may be able to support a family member’s application to enter the UK by relying on the passport of that other Member State.  Many people resident in Northern Ireland have both British and Irish citizenship and may be able to support their family member’s application by relying on their Irish citizenship. Please note that we have therefore set out the procedures involved in that type of application in our briefing dealing with the European Economic Area (Immigration) Regulations 2006 which is available in the Encyclopedia of Rights section of our website.

2.2 Two very distinct applications can be made by certain family members, either in accordance with:

  • the UK Immigration Rules;

-or-

  • the Immigration [European Economic Area] Regulations 2006 (‘the 2006 Regulations’).

It may also be possible to lodge an application outside the Rules and Regulations but this can be complex and is not covered in this briefing.  In this case you should seek specialist advice.

Before deciding which application is relevant to you, the chart below seeks to summarise and compare the procedures and requirements involved in these two options..

The remainder of this briefing outlines the procedures under the UK Immigration Rules only.

Please note that this briefing does not cover certain related issues, such as the death of the British citizen sponsor or sponsor who is settled in the UK. On these issues, further specialist advice should be sought

UK Immigration Rules

EEA Regulations

Application for visa for spouse/civil partner/unmarried partner of UK citizen or person settled in the UK.

Application for EEA Family Permit/ Residence card for non EEA spouse/civil partner of EEA with a right to reside in UK under EU law.

1. Financial and age requirements that:

  • couple can maintain & accommodate themselves and dependants without additional recourse to public funds;
  • genuine relationship;
  • neither the applicant nor the spouse/civil partner/unmarried partner in the UK will be under 18 years old on the date of applicant’s arrival in the UK.

1. Requirement that EEA national is residing in accordance with the EEA Regulations.

No financial or accommodation requirements.

Genuine relationship.

2. Applications from outside the UK to UK diplomatic post abroad where non-EEA spouse/civil partner/unmarried partner lives. Application is made on a VAF4A form. £810 plus £1814 for each dependent relative. This is a non-refundable fee).  Couple may be interviewed.  Can be slow.

If successful, granted 27 months leave to enter the UK with no restriction on working and a condition of no additional recourse to public finds for non-EEA spouse/civil partner/partner  once in the UK.

2. Applications from outside the UK to UK diplomatic post abroad where non-EEA spouse/civil partner lives. Application is made on a VAF5 form.  No fee. Generally an ‘over the counter’ speedy procedure. In some cases, applicants may be interviewed and if so it should be expedited.

If successful, granted six months EEA Family Permit. Once in UK, no restriction on access to public funds and non-EEA spouse/civil partner can take employment.

3. Applications from within the UK to UKBA. Applicant must have permission to be in the UK for more than six months (except holders of fiancé or proposed civil partner visas).  You cannot obtain spouse/civil partner/ unmarried partner visa as overstayer, visitor, asylum seeker. The application is made on Form FLR(M). It costs  £550postal fee, plus a separate fee of £275 for each dependent child, or £850 to have the application dealt with faster via a premium service, plus a separate fee of  £425for each dependent child. Applicants must provide originals of all accompanying evidence. Couple may be interviewed.  Can be slow.

3. Applications from within the UK on Form EEA 1 and 2 for a registration certificate for the EEA national and a residence card for the non-EEA family member. No fee; no interview; no financial requirements.  The principle of direct effect in European law creates an automatic entitlement for eligible immediate family members, therefore the application is for a document confirming already existing status.  Must be processed within six months. A delay beyond six months would be open to challenge. The applicant should be issued with a Certificate of Application shortly after lodging forms EEA 1 and 2 with UKBA. This will acknowledge receipt of the application and set out applicant’s rights.

If successful, granted 24 months leave to remain in UK, during which time the non-EEA spouse/civil partner/ partner can take employment, but will be restricted from accessing ‘public funds’.

If unsuccessful, there may be a right of appeal - seek advice immediately.

If successful, normally valid for five years during which time no restriction on access to public funds for most applicants.  Most non-EEA family members can take employment. Please note that certain EEA nationals may be entitled to permanent residence sooner than 5 years – see 3.3 below.

If unsuccessful, there may be a right of appeal – seek advice immediately.

4. After two years residing in the UK as the spouse/civil partner/partner can apply for Indefinite Leave to Remain (‘ILR’) on Form SET(M). Postal fee of ££972 plus a separate fee of£486for each dependent child, or £1350 to have the application dealt with faster via a premium service, plus a separate fee of £675for each dependent child.  Provide originals of all evidence.  Essential to apply before expiry of leave to remain to avoid becoming an overstayer. Must pass Life in the UK Test, and fulfill English language requirements.

4. After five years in the UK as EEA family member, can apply for a Permanent Residence Card using Form EEA3 for EEA nationals or EEA4 for non EEA nationals.

No interview; no financial requirement; no fee.


Must establish that the EEA family member has had an EU law right to reside in the UK for the previous 5 years

5. Children up to the age of eighteen who are not EEA nationals, are not married and are still dependent can apply to accompany their parents under spouse/civil partner/ partner visas. Requirement that the family show sufficient resources to maintain themselves as well as adequate accommodation. No recourse to public funds for non-EEA children during probationary period.

Note: There are provisions under the Immigration Rules for other dependent family members to apply to enter the UK.  These are complicated applications and specialist advice should be sought.

5. ‘Family members’ for EEA permits can include:

  • children and grand-children up to the age of 21;
  • children and grand-children over the age of 21 if they are still dependent;
  • dependent parents, grandparents and great grandparents;

6. Couples who have been married and living together abroad for more than four years, and couples who have been civil partners and living together abroad for more than four years, can apply straightaway for indefinite leave to enter the UK without the 27 month ‘probationary period’ if one of them is a UK citizen or settled in the UK and they travel to the UK together. Applications forms and fees will be the same as point 2 above.

6. Length of marriage or civil partnership is irrelevant.

7. Relationship breakdown ends entitlement to spouse/civil partner/ unmarried partner status during the 27 month probationary period. Relationship breakdown is irrelevant after ILR granted.

However, where a couple separate during the probationary period as a result of domestic violence suffered by the non-national spouse/civil partner/partner, ILR can still be applied for  Seek further advice immediately.

7. Relationship breakdown does not necessarily end entitlement to EEA residence card.

Spouses/civil partners retain entitlement under EU law as a family member if they separate, as long as the marriage or civil partnership has not been dissolved (by decree absolute or final dissolution order).  If the marriage or civil partnership broke down as a result of domestic violence the non-EEA national may retain the right of residence even where marriage or civil partnership is dissolved, as long as certain other requirements are satisfied.  A person in these circumstances should seek immediate specialist legal advice.

Irrelevant after Permanent Residence documents are issued. However, please note that separation does end EU right to reside in the UK for people in a ‘durable relationship’ who are neither married nor civil partners.

If the EEA spouse dies, the marriage or civil partnership lasted at least one year, and the non-EEA family member is her/himself a worker or self employed person, the non-EEA family member retains the right to reside in the UK.

Note: There are other circumstances where a non-EEA national retains the right to reside although the marriage/civil partnership is dissolved. In the event of the dissolution of a relationship in these circumstances, you must seek specialist legal advice.

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3.  Applying for a visa to enter the UK as a spouse/civil partner/partner

3.1 Apart from the exception referred to in 4.5 below, spouses/civil partners/partners of UK citizens or persons settled in the UK, can apply to the UK entry clearance post abroad, in the country in which s/he is living, for a 27 month visa to enter the UK in this capacity. All entry clearance posts are listed on the Foreign and Commonwealth website: www.fco.gov.uk

3.2 The application is made on form VAF4A which is available on the UK Visas website. There is a mandatory, non–refundable fee of £ £810 for this application.

3.3 An Entry Clearance Officer processes the application for a visa to enter the UK as a spouse/civil partner and will have to be satisfied that the requirements of Immigration Rules 277–289 are met. For a visa as a partner, rules 295AA–295O are the relevant rules. The Immigration Rules relating to the entry of spouses and civil partners require that:

  • the sponsor is present and settled in UK, or is being admitted for settlement;
  • the couple are married/ in a civil partnership;
  • both parties to the relationship are eighteen years old or over;
  • the couple have met;
  • they intend to live together permanently, and the marriage/civil partnership/partnership is subsisting;
  • there will be adequate accommodation  that they own or occupy exclusively without recourse to public funds;
  • they are able to maintain themselves adequately without additional recourse to public funds for the applicant;
  • the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application
  • the applicant does not have one or more unspent convictions within the meaning of the Rehabilitations of Offenders Act 1974 or the Rehabilitation of Offenders (NI) Order 1978

The Immigration Rules 295AA – 295A relating to the entry of unmarried partners are the same as above except that the couple must be able to demonstrate that they have been living together in a relationship akin to a marriage/civil partnership for at least two years.

3.4 The Immigration Rules therefore require that both the sponsor and applicant for the visa will be able to demonstrate with sufficient original documentary evidence that they have enough money and adequate housing for themselves, without the any additional recourse to public funds for the non-UK spouse/ civil partner/ partner. However, please note that there are certain very specific exceptions to this rule and further specialist advice should be sought.

Therefore, because the Immigration Rules only prohibit any ‘additional’ recourse to public funds for the non-settled spouse/civil partner/partner, the sponsor in the UK can still apply for benefits for themselves, if relevant.

3.5 Please note that in relation to a couple who have been living together abroad for more than four years as spouses/civil partners/partners and both are entering the UK together at the same time, the applicant can apply for a visa granting indefinite leave to enter the UK.  They do not have to go through the probationary period once in the UK, although they must satisfy all the other requirements under the Immigration Rules to enter the UK as a spouse/civil partner/partner (see 4.3)

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4. Applying for extended stay in the UK as the spouse/civil partner/partner

 4.1 If already in the UK, an individual may be able to apply to UKBA to switch into the immigration category of a spouse/civil partner/partner if s/he already has lawful permission to be in the UK for more than six months. The only exception to this six months rule relates to people who have been granted permission to enter the UK specifically as a fiancé(e) or proposed civil partner,  has a valid visa for six months in this category and is now married to/in a civil partnership with the sponsor.

4.2 An application to switch to a spouse/civil partner/partner category must be made on Form FLR(M) which can be  obtained from the UKBA website, (see 1.3).

4.3 The UKBA application forms are updated regularly. There is a mandatory requirement that an up-to-date, current form is submitted, correctly completed with all relevant original documents attached. If either an out of date application form is lodged, or if all relevant documents are lodged as copies rather than originals, without an explanation as to why this is the case and when the originals will be made available to UKBA, the application will not be considered  as valid by UKBA.  It may be returned to the applicant as an invalid application.  By that time, the previous permission to remain in the UK of the non-settled spouse/civil partner/partner may have expired and s/he may therefore have inadvertently become an ‘overstayer’. S/he will be therefore  be in the UK illegally,  liable to be removed and it will have limited grounds of appeal against a refusal. 

4. 4 The fee for lodging Form FLR(M) is presently £550 for postal applications, plus an additional fee of £275 for each dependent child, or £850 plus a separate fee of £425 for each dependent child to have the application dealt with faster via a premium service which is only available in designated UKBA Public Enquiry Offices throughout the UK. Please note that the Public Enquiry Office in Belfast does provide this service.  We strongly advise that you keep a copy of everything that you send to UKBA and that you send all correspondence to UKBA via special delivery, keeping the docket to prove postage.

4.5 If the application on FLR(M) is successful, the applicant will be granted 24 months leave to remain in the UK as a spouse/civil partner/partner. During this period, the spouse/civil partner/partner is entitled to work but cannot access public funds, subject to the exceptions mentioned above, at 4.4.

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5. Applying for a visa to enter the UK as a fiance(e)/proposed civil partner

5.1 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 in this category.  Please note that it is not possible to switch into a fiancé/proposed civil partnership immigration category once in the UK. A person must enter the UK with this visa already endorsed in their passport. The application is made on Form VAF4A and the fee is £850. If successful, these visas are issued by the Entry Clearance Officer for a maximum six month period, 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 once in the UK on form FLR(M).  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 state when you will be getting married or forming a civil partnership.  It must be lodged with UKBA before the first six month visa expires.  Otherwise the applicant will become an overstayer and will be in the UK illegally (see.4.3).

5.2 To obtain a fiancé(e)/proposed civil partner visa the couple will have to demonstrate that they satisfy the requirements of Immigration Rules 289AA–295.  The immigration Rules require that the couple:

  • have met;
  • are in a genuine relationship;
  • intend to live together permanently;
  • are planning to marry or form a civil partnership within six months of entry into the UK;
  • have sufficient financial resources and accommodation to support and house themselves without additional recourse to public funds for the applicant
  • the applicant has sufficient knowledge of the English Language

The fiancé(e)/proposed civil partner will not be allowed to take employment while in this category. Once married or having formed a civil partnership, an application should be lodged with UKBA to switch immigration status so as to remain in the UK as a spouse/civil partner. This application should be made on Form FLR(M) (see section4).

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6. Indefinite leave to remain in the UK

6.1 Once a person has resided in the UK in the immigration category of spouse/civil partner/partner for 24 months, s/he is eligible to apply to UKBA for indefinite leave to remain. Please note that a spouse/civil partner/partner who was granted indefinite leave to enter the UK prior to coming to the UK does not need to extend their immigration status as they have already been granted permission to remain in the UK permanently (see.3.5).

6.2 An application for indefinite leave to remain in the UK in this category is made on Form SET(M), which is available from the UKBA website (see 1.3). The postal fee for this application is£972 plus a separate fee of £486 for each dependent child, or £1,350 to have the application dealt with faster via a premium service, which is available at designated Public Enquiry offices throughout the UK, plus a separate fee of £675 for each dependent child. Please note the Belfast UKBA does provide this service. The application must be lodged prior to the expiry of the permission to remain as the spouse/civil partner/partner so as to avoid the applicant becoming an overstayer (see 4.3)

6.3 In order to be granted indefinite leave to remain in the UK in this category, applicants must be able to demonstrate that they satisfy the requirements of the Immigration Rules:

  • the relationship is still subsisting and the couple intend to live permanently together;
  • there will be adequate accommodation without additional recourse to public funds in accommodation they own or occupy exclusively;
  • they are able to maintain themselves adequately without additional recourse to public funds;
  • the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application
  • the applicant does not have one or more unspent convictions within the meaning of the Rehabilitations of Offenders Act 1974 or the Rehabilitation of Offenders (NI) Order 1978.

6.4 Once indefinite leave to remain is granted, the spouse/civil partner/partner will be entitled to have recourse to public funds if necessary and to continue to work. As the law presently stands, where a person granted indefinite leave to remain leaves the UK for over two years, then s/he will lose this status and will have to make a fresh application to enter the UK.

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7. Appeals

If an application to either enter or remain in the UK in one of the categories referred to in this briefing, is unsuccessful, that decision may attract a right of appeal. Deadlines for lodging grounds of appeal are very short and the grounds may be complex. In the event of an application being refused, please seek legal advice immediately.

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8 Useful websites and addresses

Law Centre (NI)

124 Donegall Street Belfast BT1 2GY.  Telephone 028 9024 4401.

Western Area Office: 9 Clarendon Street, Derry, BT48 7EP.  Telephone 028 9023 9938.

Law Centre (NI): www.lawcentreni.org  

UK Border Agency: www.ukba.homeoffice.gov.uk  

Foreign and Commonwealth Office: www.fco.gov.uk/en/  

UK Visas: www.ukvisas.gov.uk/en/

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9. 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) March 2012

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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