- Who are ‘partners’ ?
- The Immigration Rules
- The rules relating to partners in Appendix FM and Appendix FM-SE
- Who can apply ?
- Making an application
- Time periods for limited leave and indefinite leave (ILR)
- Domestic violence and bereavement
- Refused applications
- Applicants who cannot meet the requirements of the immigration rules
- What happens if my partner is an EEA national ?
- What is a marriage/civil partnership visit visa?
- What happens if my sponsor has limited leave ?
- Immigration Rules – Home Office links
British immigration law has, over recent years, become increasingly complex and it is now very difficult to provide a general guide. Applicants must read the Immigration Rules (and any related guidance) before making an application and should not rely on this guide alone.
It has traditionally been UKLGIG’s position that those with ‘straightforward’ applications should be able to make an application without the help of a legal advisor. We now believe that the need for specialist advice has increased due to the complexity of the rules introduced by the UK Visas & Immigration (UKVI), particularly since July 2012.
This guide is designed as a starting point to make the immigration rules more accessible but should not be the only source of information used by applicants. UKLGIG would like to thank Barry O’Leary of Wesley Gryk Solicitors for his considerable work on the contents of this page.
It must be noted that the requirements are different depending on the status of the partner who already has the right to live in the UK. This guide deals mainly with the partners of those who are British or settled (hold indefinite leave or permanent residence in the UK). It also includes the partners of those who are in the UK with refugee leave or humanitarian protection (though there are separate rules for the partners of refugees who were already partners before the refugee left their home country). The situation for the partners of EEA nationals is dealt with at the end.
See separate page for a list of links to the important pages of the UK Visas and Immigration section of www.gov.uk
Who are ‘partners’ ?
The same sex partners of British citizens or those ‘settled’ in the United Kingdom (those with indefinite leave or permanent residence) can apply to come to the UK, or stay in the UK under the British Immigration Rules on the basis of three types of partnership:
- Marriage/civil partnership
- Two years cohabitation (commonly known as unmarried or same sex partners)
- Fiancé(e)/proposed civil partnership
Spouses and civil partners are treated the same in immigration law. Since 2014 same sex couples have been able to choose between marriage and civil partnership. The UK also recognises overseas same sex marriages.
Civil partnership is not limited to those who enter into a British civil partnership in the UK or at one of the British Embassies abroad which conducts ceremonies (there are a limited number of British Diplomatic Posts abroad where it is possible to register a CP).
Applications can also be made on the basis of certain overseas relationships which are recognised as being civil partnerships under British law. Some of these relationships are listed at Schedule 20 of the Civil Partnership Act 2004 but that list frequently goes out of date and there are now many more relationships which are recognized as civil partnerships. Even if a relationship does not appear in the current or future Schedule 20, it may be acceptable if it meets the general conditions in section 214 of the CPA.
If you are in an overseas relationship which has been recognised in the law of that country (or region of that country), you can check with the UKVI contact centre whether your relationship is considered equivalent to a UK civil partnership, or post a message on the UKLGIG forum asking others for their experiences.
The new immigration rules no longer use this term (though some forms and guidance still do). The rules, however, do make clear that an application can be made by ‘a person who has been living with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application’. The prior cohabitation is mandatory – it is not sufficient that you have just been in a relationship for 2 years. ( Note – There is no period of prior cohabitation required for an application as a spouse/civil partner).
The EEA regulations 2006 recognise those in “durable relationships” under EU law. This is currently interpreted by the Home Office to mean 2 yrs prior cohabitation just like the UK unmarried partners rules.
Fiancé(e)s/Proposed civil partners
A visa application in this category can be made from outside UK only. A fiancé(e)/proposed civil partner visa allows an individual to come to the UK for the purpose of entering into a marriage/civil partnership (within six months) and then apply for the right to stay as a spouse/civil partner.
The Immigration Rules
The rules are no longer separated into the three categories above, but show the requirements that apply to all of them (with certain exceptions).
The rules relating to partners in Appendix FM and Appendix FM-SE
Appendix FM contains the rules which apply to the partners of British citizens or those ‘settled’ in the United Kingdom (with indefinite leave to remain or permanent residence) who wish to come to the UK or stay in the UK on the basis of their relationship. Appendix FM-SE specifies exactly the format of the documents which must be followed for an application to be considered.
The rules give separate requirements for entry clearance applications (applications from abroad also known as visa applications) and applications for leave to remain (applications from within the United Kingdom). The rules are similar for each but not exactly the same.
Who can apply ?
The Immigration rules require that applicants must be ‘suitable’ and ‘eligible’
‘Suitability’ deals with issues of criminal conduct, ‘bad character’ and certain aspects of previous immigration history. More details can be found in Appendix FM at S-LTR and S-EC under the heading ‘Family Life with a partner’.
For those applying for a visa (entry clearance), they must also consider whether their application may be refused under paragraph 320 (11) of the immigration rules ‘where the applicant has previously contrived in a significant way to frustrate the intentions of these Rules.’
We especially advise those with negative immigration histories to seek specialist legal advice.
- Relationship requirements
- Financial requirements
- English language requirements
- Immigration status requirement (leave to remain only)
Applicants must also check, in addition to these requirements, whether they are applying from a country where a TB certificate is required.
Under relationship requirements, the rules require the following:
- The applicant’s partner must be British, settled, a refugee or have humanitarian protection.
- The applicant must be aged 18 or over at the date of application.
- The partner must be aged 18 or over at the date of application.
- The applicant and their partner must not be within the prohibited degree of relationship.
- The applicant and their partner must have met in person.
- The relationship between the applicant and their partner must be genuine and subsisting.
- If the applicant and partner are married or in a civil partnership it must be a valid marriage or civil partnership, as specified.
- If the applicant is a fiancé(e) or proposed civil partner they must be seeking entry to the UK to enable their marriage or civil partnership to take place.
- Any previous relationship of the applicant or their partner must have broken down permanently
- The applicant and partner must intend to live together permanently in the UK.
Note that unmarried/same sex partners must show 2 years prior cohabitation.
An applicant must pay particular attention to the requirement to show a ‘genuine and subsisting relationship.’ It is not enough to simply submit a marriage or civil partnership certificate, an applicant must give evidence of the genuine nature of the relationship. The UKBA internal guidance as to factors they will take into account can be found here in Annex FM Section FM 2
We suggest that applicants do their best to provide as many of the following documents as possible, in addition to the mandatory documents requested by UKVI (this is not an exhaustive list and we are not suggesting that every applicant must have all of these documents):
In connection with the relationship requirements, your dossier should include such things as:
- a covering letter from each of you detailing most, but not necessarily all of the following:
- How and when you met.
- How and why the relationship developed.
- If you’ve spent time apart – why, and how you felt during this time.
- Your shared social activities and hobbies.
- Milestones in your relationship such as moving in together or going on holidays.
- What makes your relationship special for you.
- What makes your partner special for you.
- Future plans you may have.
- Evidence of Cohabitation (essential for unmarried partners and helpful although not mandatory for spouses/civil partners or fiancé(e)s/proposed civil partners). This might include joint leases or a letter from your landlord/lady stating that you live at the same address; joint utilities bills; individual utility bills; letters addressed to you both at the same address; official documents which are addressed individually but show the same address. Unmarried partners must produce as much evidence of cohabitation as they can. They should use any document which shows their name(s), their address and the date.
- Passport stamps and/or tickets to show visits to your partner’s country and/or travel together.
- Evidence of contact while apart e.g. telephone bills, a selection of emails, Skype or WhatsApp records, for any periods when you were separated.
- Photographs of you together clearly dated, captioned and accompanied with an explanation.
- Supporting letters from friends and family, saying in their own words:
- How long they have known you both.
- How long they have known of the relationship.
- Reasons why they believe the relationship is genuine and committed.
- How you would feel if you were forced to be apart.
Since July 2012, the financial, as well as the evidence requirements have become very strict.
We repeat this is only a brief summary. UKLGIG advises all applicants to study the detail carefully (using the links we have provided to the UKVI website), or seek specialist advice.
The basic position is that the evidence must show a gross annual income of at least £18,600 (plus an additional £3,800 for a first dependent child and an additional £2,400 for each other dependent child). This minimum income will qualify alone, or in combination with savings of £16,000, plus additional savings equal to 2.5 times the shortfall in gross annual income. The savings must have been in cash over a six month period (certain investments can be liquidated within the six months and count as cash).
It is not possible in this guide to go into all the different ways that the income and/or savings requirement can be met. All applicants must look at the UKVI guidance at Annex FM 1.7: financial requirement and the immigration rules at Appendix FM-SE (or take specialist legal advice).
It is crucial to supply the required documents, and applications will be refused without the correct documentation as set out in Appx FM-SE.
You must also show there is adequate accommodation for all family members: this is accommodation which the family must own or occupy exclusively. “Adequate” is defined by reference to non-overcrowding/contravention of public health regulations.
The rules are less prescriptive as to evidence on this point but we suggest you supply the following documents (as appropriate):
- Land Registry entry or mortgage statement.
- Rental contract.
- Letter from owner/landlord.
- Recent utility bills.
See also E-ECP.3.1/3.2 Appendix FM family members under the ‘Family Life as a partner’ heading.
English Language requirements
Applicants should first of all read the English language guidance.
The precise wording of Appendix FM states requirements that applicants:
- are a national of a majority English speaking country listed in Appendix FM paragraph GEN.1.6 (under the ‘General’ heading), or
- have passed an English language test in speaking and listening at a minimum of level
A1 of the Common European Framework of Reference for Languages with a provider
approved by the Secretary of State, or
- have an academic qualification recognised by NARIC UK to be equivalent to the standard of a Bachelor’s or Master’s degree or PhD in the UK, which was taught in English, or
- are exempt from the English language requirement under Appendix FM E-ECP.4.2.
The applicant is exempt from the English language requirement under E-ECP.4.2 if at the date of application:
- (a) the applicant is aged 65 or over;
- (b) the applicant has a disability (physical or mental condition) which prevents the applicant from meeting the requirement; or
- (c) there are exceptional circumstances which prevent the applicant from being able to meet the requirement prior to entry to the UK.
If the applicant is not from one of the listed majority English language 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; or the United States of America), does not have a qualifying degree, or is not exempt as above, they must have an approved test and required evidence, as listed in Appendix O.
Appendix O appears to contain the same list as provided in Applying for a UK visa: approved English language tests (GOV.UK guidance). Please note that most of the approved English language tests are valid for 2 years.
If applying from within the UK, an applicant must not be in the UK in any of the following categories:
- as a visitor,
- with a visa which was originally granted for a period of 6 months or less, apart from fiancé(e) or proposed civil partner visas, or leave granted for family court proceedings, or
- on temporary admission, or
- in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less)
But, importantly, the immigration status requirements may not apply if paragraph EX applies (see below).
Making an application
It is UKLGIG’s experience that couples often focus too much on the procedure. The procedure is of course very important but it is essential to consider the rules and the evidence first. It is not just about the application form and there are fees for all applications !
Applying from abroad
Applications for entry clearance should be made in the applicant’s country of residence. ‘Country of residence’ is not necessarily their country of origin and refers to wherever the applicant has permission to reside, for example, for work or study purposes. Many countries will issue overseas nationals with residency cards in these cases. An applicant who has permission to stay in a country as a visitor for 6 months is not a resident.
Most British Embassies now require that the application is made on-line so there is no form number, instead an applicant must follow the on-line instructions. The procedure changes from country to country so an applicant must always check the specific procedures for that country. This can be done by finding the appropriate visa application centre.
At the time of writing, all applicants must also submit a paper Appendix 2 (Financial Requirement Form) but always check up to date information on forms as this guide will not be changed every time a form change is made. The links to the financial requirement form and guide to supporting documents will be found here. Applicants must also check the applicable fee. Some embassies offer a priority service for payment of an extra fee.
A “health surcharge” for use of the NHS was introduced for all new applications for entry clearance or leave to remain for over 6 months, made on or after 6 April 2015 (but some nationalities are exempt). The charge is £150 per year for students and £200 per year for all other types of application, payable in full up front. A charge is payable for each dependent as well as the main applicant.
Note that you will also need to have a tuberculosis (TB) test if you are coming to the UK for more than 6 months and are currently resident in any of the listed countries. The test certificate is valid for six months only and will be required at the first visa application stage
If a visa application is successful, a visa is issued for one month from the stated date of intended travel. You must enter the UK and collect your biometric residence permit from a designated Post Office. The biometric residence permit will show leave to remain for 33 months. The only exception to this is fiancé(e)/proposed civil partners who will have 6 months in their passport.
Applying from within the UK
Note – It is now possible to complete a further leave to remain application on line. The information in this section is all valid, but relates to a ‘paper’ application.
An application for further leave to remain as a partner is made using form FLR(M). The fees are shown on the form. Carefully check the Guidance Notes. Ensure the correct fee is paid (take particular note of the new International Health Surcharge (IHS) for use of the NHS from 6th April, 2015) and provide all the mandatory documents (including the photos in the correct format) to ensure the application is not rejected as invalid. If paying by card, check with your bank that the charge will be accepted.
The application can be made using the postal route, or in person within the day at a Home Office Premium Service Centre (see more detail below). The Further Leave to Remain application must be filed before the existing Leave to Remain or “proposed civil partner” visa expires to ensure an applicant remains lawfully in the UK. An application may possibly still be successful if made while an overstayer of 28 days or less but applicants should not rely on this, they should apply before their leave has expired.
If applying by post, make sure that your application is sent to the Home Office by Recorded or Special Delivery, to the address at the bottom of the last page of the form. So long as you have made the application before your leave to remain/enter expires, you continue to be legally in the UK until such time as a decision has been taken and until any appeal rights are exhausted. If you had permission to work before you made the application you will continue to have this permission to work whilst the application is being considered. If you did not have permission to work when you made the application this continues to be the case until you receive a positive decision.
If your application is urgent or you are unwilling to wait for the three to six months the application may take, you may take it to the Premium Service Centre (PSC) at Lunar House, 40 Wellesley Road, Croydon CR9 2BY or to one of six other regional PEOs in Solihull, Glasgow, Liverpool, Sheffield, Belfast or Cardiff. The premium same-day service fee will be payable and you must book an appointment through the website well in advance. Applications at Premium Service Centre are by appointment only.
You should try to get all the documentation into one ‘lever arch’ file or box file. You should present your evidence in a way that it is easy for the Home Office to read. They are under considerable pressure of time and you should therefore prepare an index and separate your documents under logical headings using coloured file dividers etc.. There is no magic formula to how you present your evidence – use your common sense. Remind yourself of the type of evidence required using our evidence page.
If you request the return of your passport your application will be considered to be withdrawn. If you find yourself in a situation where you need to travel because a relative is seriously ill and the Home Office has not decided your application it may be possible to persuade them to decide your application immediately, but this is difficult. If you will need to travel, you should aim to use the Premium Service Centre.
Time periods for limited leave and indefinite leave (ILR)
If an application is successful, the applicant will be granted a period of leave depending on the type of application made. All applications lead to a grant of limited leave and all applicants must spend at least 5 years in the UK before being eligible for indefinite leave to remain (ILR).
What leave will be granted and when will the partner be eligible for ILR ?
- Spouse/civil partner visas (entry clearances): 1 month and then 33 months on biometric residence permit.
- Fiancé(e)/proposed civil partner visas: 6 months and then they must extend for a further 30 months after they are married/civil partnered (and this can be done at any point during the 6 months).
- Leave to Remain (applications within the UK): 30 months.
- The foreign partner will need to extend for a further 30 months beyond the initial 30 (or 33) month period. Those who have met the rules in Appendix FM will become eligible for
indefinite leave to remain after 60 months (five years).
- Those who have relied on EX.1 (see below), will need to continue to extend every 30 months to reach a total period of 10 years before they become eligible for indefinite leave to remain.
Prior to obtaining indefinite leave, a partner will be free to take employment, but there will be a prohibition on receipt of public funds. Partners are free to use the National Health Service and to travel in and out of the country. Fiancé(e)s/proposed civil partners can only work after they have switched their immigration status in the UK after registering their civil partnership, but are covered by the NHS from the time of their arrival.
Visas are issued as stamps in passports giving permission to enter and remain in the UK but all grants of leave to remain from within the UK are now given on a biometric residence permit which is a separate card. If you have one of these cards you must remember to take it with your passport when traveling abroad.
Domestic violence and bereavement
There is provision both within Appendix FM for indefinite leave to be granted before five years if the relationship ends as a result of domestic violence or bereavement. See also our Domestic Violence page.
Refusals under Appx FM attract a right of appeal on human rights grounds.
You should instruct a lawyer to advise and assist you in respect to this appeal. If you are unable to find a lawyer within the deadline, you should complete and submit the appeal form as fully as possible yourself.
Applicants who cannot meet the requirements of the immigration rules
Traditionally, applicants who not meet the requirements of the immigration rules, have sought to rely on Article 8 of the European Convention on Human Rights which applies to applications from inside and outside the United Kingdom.
It is the Secretary of State’s position that Appendix FM “reflects how, under Article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic well-being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others. It also takes into account the need to safeguard and promote the welfare of children in the UK.” (page 5)
In an attempt to reflect Article 8, the Secretary of State has introduced EX 1 (Exception 1) which, very briefly, states that for leave to remain applications only, an applicant can be successful even if they do not meet the eligibility requirements when:
- (a) (i) the applicant has a genuine and subsisting parental relationship with a child who:
- (aa) is under the age of 18 years
- (bb) is in the UK
- (cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application, and
- (ii) it would not be reasonable to expect the child to leave the UK, or
- (b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.
If you are in the UK without lawful status, or if you cannot meet one of the other requirements, you may still be able to have a successful application. We strongly advise that you obtain specialist legal advice.
What happens if my partner is an EEA national ?
The EEA and ‘exercise of treaty rights’
The EEA (European Economic Area) is comprised of the EU plus three other countries:
Austria, Belgium, Bulgaria, Croatia*, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Irish Republic, Italy, Latvia, Lithuania, Malta, Luxembourg, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, and Sweden plus Iceland, Liechtenstein and Norway.
* Restricted rights until 1st July, 2020.
Switzerland is not part of the EEA but its citizens are treated in a similar way due to a separate agreement.
An EEA national has a right of residence in the United Kingdom if they can show that they are ‘exercising their treaty rights’, or have acquired permanent residence under EU law. They usually do this by working or being self-employed but there are other ways. Full guidance on the exercise of treaty rights is given in the European Casework Instructions.
The partners of EEA nationals who are exercising their treaty rights in the UK, or have acquired permanent residence under EU law, come under EU law not UK law, so that the UK immigration rules do not apply. The exception to this is fiancé(e)/proposed civil partner applications which come under UK law, but currently this route is only available to the partners of EEA nationals who have acquired permanent residence.
The family of an EEA national who can show that they are exercising treaty rights will be able to join them or stay with them in the UK. This includes a civil partner (or other recognised partnership), or people in a ‘durable relationship’ (extended family members) under EU law. Durable relationships are currently interpreted by the Home Office to mean those with 2 yrs prior cohabitation just like the UK unmarried partners rules.
Applicants can apply to enter UK as the family member of their EEA sponsor by means of a family permit . This application can be made ‘at any post designated by the Secretary of State to accept applications for entry clearance’ and ‘the applicant will need to be in the third country or territory in accordance with that country or territory’s immigration laws’ (i.e. legally).
A non-EEA partner who is already in the UK can make an application for the right to remain (a residence card) on form EEA(FM) and it is possible to do this at the same time as the sponsor’s application for a registration certificate (though an EEA national does not need to have a registration certificate to live and work in UK).
The spouse or civil partner of an EEA national who is exercising treaty rights in the UK, or has acquired permanent residence under EU law, has an absolute right to remain with the sponsoring partner while they are in the UK, but for practical purposes such as employment, and reentry without applying for a family permit each time, a residence card is needed.
A residence card will be granted to the spouse/civil partner of an EEA national regardless of their immigration status, but we would advise you to obtain legal advice if your immigration status is in question, and the situation is less straightforward for durable partners.
Dual British/EEA nationals
The Immigration (European Economic Area) (Amendment) Regulations 2012 has amended the definition of an “EEA national” in Regulation 2 of the 2006 Regulations.
The new definition excludes persons with dual EEA and British nationality (for example, someone who is both Irish and British) from being considered as “EEA nationals” for immigration purposes.
There are transitional arrangements built into the statutory instrument for the family members of dual EEA/British nationals who, prior to commencement of this provision, relied on their family members’ status as EEA nationals under the 2006 Regulations or who have made applications prior to that date.
The amendment to the regulations is a response to the judgment of the European Court of Justice in ‘McCarthy’ in which it was held that only those who have exercised their rights of free movement – and not those who reside in their country of nationality – can rely on the EEA provisions relating to free movement.
The exact scope of the judgment is subject to debate and we believe that the new regulations have gone too far but it appears that, as the new regulations are written, the non-EEA family members of dual EEA/British nationals will no longer be able to rely on their family members’ EEA nationality to secure a right of residence in the United Kingdom after 16th October 2012.
Those affected should seek specialist legal advice because it is possible that, for those whose sponsoring partners have lived outside the UK in another EU country, EU law should apply even if they are dual nationals.
European law does not provide for fiancé(e)s/proposed civil partners. If the EEA national has acquired permanent residence, the partner can use the fiancé(e)/proposed civil partner category. Otherwise, the couple will need to marry abroad or use a marriage/civil partnership visit visa and then leave the UK to apply for an EEA family permit.
What is a marriage/civil partnership visit visa?
It is possible to visit the UK specifically for the purpose of registering a civil partnership, or entering into marriage, returning to your home country afterwards. However, if you wish to do this you must apply for a special “visitor for marriage or civil partnership visa” before coming to the UK. You should not come to visit the UK without this visa if you know that during your visit you intend to enter into a civil partnership.
What happens if my sponsor has limited leave ?
Spouses or civil partners (or unmarried partners) of people with a time restriction on their leave to remain in UK, such as points-based system migrants or ancestry visa holders, can apply for the right to be in the UK and will usually be permitted to work. Different rules apply to this category.
- The partners of those subject with limited leave cannot use the fiancé(e)/proposed civil partner category to enter the UK.
- In most circumstances, it is not possible to make a switch from another category within the UK if the sponsor has limited leave. Each situation should be checked, however, as this depends on the precise status of the sponsor.
- If, therefore, there is no option for the couple to marry or register an equivalent recognised overseas legal partnership, it may be necessary to obtain a marriage or CP visit visa first, travel to marry or register the CP in the UK, then return home to make an entry clearance application as an existing spouse/CP.