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Family life with a partner

 Applying for entry clearance outside the United Kingdom

  A partner is defined by the Immigration Rules as a fiancé(e), proposed civil partner, spouse, civil partner, same sex partner or unmarried partner. 

  A person wishing to enter the UK on the basis of their relationship to a British national or a person present and settled in the UK do not have an automatic right of entry. Instead it is necessary to apply for a leave to enter (known as entry clearance) to enter the UK in the correct capacity. Prior entry clearance in this category is mandatory. It is not possible to obtain this visa from within the UK. The application should be lodged at the nearest British overseas post authorised to deal with such matters.

 

 The Rules

On 9 July 2012 new Immigration Rules came into force for a person seeking to enter the UK as a partner.  In order for the applicant to meet the eligibility requirements for entry clearance as a partner all of the requirements in paragraphs E-ECP.2.1. to 4.2 are to be met. The eligibility requirements to be met are as follows:

  • the sponsor is a British citizen or a settled person who is present and settled in UK;
  • the sponsor and applicant are both eighteen years old or over at the date of application;
  • the couple have met in person;
  • the applicant’s relationship with the sponsor is genuine and subsisting;
  • if the applicant is married to or is in a civil partnership the sponsor, the marriage or civil partnership must be valid in UK law;
  • if the applicant is a fiancé or proposed civil partner s/he must be seeking entry to enable their marriage or civil partnership to take place;
  • any previous relationship has permanently broken down
  • the applicant and the sponsor intend to live together permanently in the UK;
  • the applicant meets the financial requirement
  • the applicant meets the English language requirement of speaking and listening qualification at B1 level or above, unless s/he is exempt from doing so at the time s/he makes his application

We shall now discuss these requirements one by one in order to have a more comprehensive understanding of the types of evidences which can help fulfil these requirements.

the sponsor is a British citizen or a settled person who is present and settled in UK

In support of the entry clearance application the sponsor will need to provide evidence of his or her immigration status in the UK.  The entry clearance officer who will consider the application must be satisfied that the sponsor is present and settled in the UK.

 

the sponsor and applicant are both eighteen years old or over at the date of application;

The applicant and the sponsor will need to satisfy the entry clearance officer that they are both aged eighteen years or over when the application is made. If the applicant or the sponsor is aged under eighteen years old, the application will be refused on the basis that the age requirements have not been met.

 

the couple have met in person;

Generally it is impossible to get married to a person whom a person has never met but there are certain circumstances where persons never see their spouse and yet they are married to them. The entry clearance officers do not take these circumstances as an exception to the general rule and is quite keen to see evidences in place regarding the meeting of the parties to the marriage. The possible evidences of this factor are Marriage certificate itself sometimes mentions the presence of the two parties to marriage or Marriage Pictures.

In addition to the above, the entry clearance officers do ask questions relating to this issue, to make sure that the applicant has really met the spouse. Most frequent questions are: the place or time / day of first meeting, where the marriage ceremony took place, close family members of the sponsor and the like.

 

 the applicant’s relationship with the sponsor is genuine and subsisting;

The evidence to support this fact could be a letter or a declaration from the sponsor confirming that the applicant is his / her partner and would be staying with him / her at a given address owned / occupied by the sponsor upon his /her entry to the UK.

This letter itself is a proof of the intention of the sponsor that he /she will be residing with his / her partner together at a given address. While the submission of such a letter along with the entry clearance application form by the applicant will serve as a proof of the intention of the applicant that he / she agrees to stay together with his / her spouse at the address given on the letter by the sponsor.  The entry clearance officer might ask questions regarding the address or description of the place of residence, where the applicant intends to stay in the UK. This is to confirm that the applicant has all the intentions to live together with his / her partner. It is, therefore really important to know the address and the description of the property where the applicant and his / her partner would be staying in the UK.

 

if the applicant is married to or is in a civil partnership the sponsor, the marriage or civil partnership must be valid in UK law;

A legal marriage is a marriage that is registered with the official registrar of the place where marriage took place and is recognised under the law of the country where the marriage actually took place. The official registrar / local authority usually issues marriage certificate as a proof of marriage which in return create rights and obligations for both the parties. In addition to the marriage certificate one can also submit some pictures of the marriage ceremony as a supportive evidence of the event of marriage. Although a marriage certificate is a conclusive proof of the fact of marriage but it is always good to have some supportive evidence which gives more strength to the primary evidence.

 

if the applicant is a fiancé or proposed civil partner s/he must be seeking entry to enable their marriage or civil partnership to take place;

if the applicant is wishing to enter the UK to enable their marriage or civil partnership to take place the entry clearance officer must be satisfied that it is the applicants true intention to come to the UK for that purpose. The entry clearance officer will like to see evidence of any arrangements that have been made by the applicant and the sponsor such as venue booking receipts, invitation cards and any other plans.

 

any previous relationship has permanently broken down

An entry clearance office must be satisfied that if the applicant or his / her sponsor were in any previous relationship, that relationship has broken down. For example if the sponsor was married in the UK, he /she will need to provide a decree of absoluite from a UK Court as evidence that his / her previous relationship / marriage has permanently broken down. 

 

the applicant and the sponsor intend to live together permanently in the UK;

It is really important to establish that the marriage is still valid and the following documents can also be submitted as a supportive proof of the subsistence of the marriage:

  • Print outs of emails sent by the sponsor to the applicant and sent by the applicant to the sponsor.
  • Letters written by the sponsor to the applicant.
  • Greeting cards sent by the sponsor to the applicant.
  • Phone Bills containing the telephone number of the applicant as a proof that there is still a contact between the two (If the sponsor is in the UK).

 

the applicant meets the financial requirement

From 9 July 2012, a new and considerably more complicated procedure is used to determine an individual’s abilities to maintain him or herself without recourse to public funds to qualify for a spouse visa.

The minimum income threshold requirement for the sponsor is £18,600 per year. Where the sponsored spouse has a dependent child, minimum income threshold is £22,400. Additional £2,400 per year applies for each additional sponsored child.

Where the sponsor falls below the income threshold, maintenance requirements can be met through savings. The couple have to demonstrate savings of £16,000 plus additional savings of an amount equivalent to 2.5 times of the shortfall amount.

There are a number of ways to meet the maintenance requirement:

1. Hold a job paying above the threshold for at least the last 6 months.

 2. If your current employment is of less than 6 months but you have been in employment at a salary above the threshold for the last 12 months, that could suffice.

 3. Income from self-employment. If you have been in self-employment for the last year, your income from the business will be taken into consideration. If you have been in self-employment for more than 1 year, the average of the last 2 years will be taken into account.

 4. Hold significant personal savings (see below).

 5. Have income from investments or property held in your or your partner’s name(s).

 There are a number of documents which can be conclusive evidence of the fact that financial requirements have been met including:

  • Bank Statements
  • Pay slips
  • A letter from the employer of the sponsor if he / she is an employee
  • An employment contract of the sponsor if he / she is an employee
  • Financial Statements / Annual Accounts of the business if the sponsor is self employed
  • Any other documentary evidence that proves the existence of the business
  • Income Tax Returns
  • P 60
  • Bank Statements of the applicant

All the above documents do make good evidence to prove that the applicant and the sponsor would be able to maintain themselves without having recourse to any kind of public funds.

 

 the applicant meets the English language requirement of speaking and listening qualification at B1 level or above, unless s/he is exempt from doing so at the time s/he makes his application

 The applicant will need to demonstrate that he / she has completed an English Language Course with an approved English Language Test provider to meet the English language requirement.

 

If application is successful

If the application is successful the applicant will initially be given a 5 year visa.

If the applicant continues to meet the requirements of the rules after 60 months and has passed both an English language test at level B1, plus the Life in the UK Test it will be possible to apply for indefinite leave to remain, (ILR or settlement as it is often referred to).

 

Refusal and Right of Appeal

 If the Entry Clearance Officer refuses the application under the Immigration Rules, he or she is obliged to consider the individuals rights under the European Convention on Human Rights, in particular the right to family life with someone settled in the United Kingdom (Article 8). The individual will have to prove on the balance of probabilities that:

  •   There is family life between the applicant and his/her partner.
  •   That a decision to refuse entry clearance would have grave consequences for this family life (i.e. in the sense that the parties would have to live apart).
  •   That a decision to refuse entry clearance would be disproportionate.

If the application for entry clearance is refused the applicant will have a right of appeal. It is important that the sponsor is notified immediately as the appeal against the decision is exercisable from the UK only,

Please contact us on 0207 392 7672 if you would like to discuss your immigration requirements and need further advice and guidance on apply for entry clearance as a partner.