Guidance

Civil partners: SET04

Published 6 July 2012

For guidance on applications made on or after 9 July 2012 please refer to Appendix FM which can be found at page 19 of the Statement of Changes in Immigration Rules.

All applications submitted before 9 July 2012 should be considered under the old Rules.

1. SET4.1 What is the definition of a civil partner?

A civil partner is a person who has legally registered his / her partnership with another person of the same sex.

2. SET4.2 What is the definition of a sponsor?

In an application as a civil partner, the sponsor is the person with whom the applicant is in a civil partnership with.

3. SET4.3 How do civil partners qualify?

For an applicant to qualify for admission as a civil partner of a person present and settled in the UK (or of a person being admitted on the same occasion for settlement) he / she needs to satisfy the requirements set out at Rules paragraph 281.

4. SET4.4 What is ‘present and settled’?

‘Present and settled’ means that the sponsor is either:

• settled in the UK and, at the same time that an application under the Immigration Rules is made, is physically present in the UK; or,
• is coming to the UK with or to join the applicant and intends to make the UK their home with the applicant if the application is successful.

‘Settled’ is defined in paragraph 6 of HC395 and means ‘free from any restriction on the period for which he / she may remain in the UK, and ordinarily resident in the UK’.

‘Ordinarily resident’ means ‘having a regular habitual mode of life in a particular country, the continuity of which has persisted despite temporary absences’.

If the sponsor has temporarily traveled abroad to accompany the applicant in making the application, this will not affect the sponsor’s present and settled status. Such absence from the UK is not of itself a reason for refusal.

Sponsors may be British citizens. Strictly speaking, a British citizen who has been resident abroad but who returns to the UK to live is not ‘admitted for settlement’. However, if he / she expresses the intention of returning to the UK to reside, the ECO can regard him/her as present and settled in the UK.

For guidance on sponsors who are permanent members of the Diplomatic Service and comparable UK-based members of the British Council,HM Forces and DFID.

See SET06 Partners of members of the Diplomatic Service / British Council / HM Forces / DFID.Where the sponsor has not been resident in the UK for some time, the ECO should take care to ensure that the maintenance and accommodation requirements will be met.

See Maintenance and accommodation (MAA).

5. SET4.5 What is the age requirement?

Rules paragraph 277

An application by a civil partner should be refused if:

• The applicant will be aged under 18 on the date of arrival in the UK; or
• The applicant’s civil partner will be aged under 18 on the date of arrival in the UK.

In cases where the applicant is within a couple of months of their 18th birthday, and the other party is 18 or over, the ECO has discretion to issue entry clearance but valid only from when the person under 18 has reached their 18th birthday.

When an applicant has reached the age of 18 but was in a civil partnership before attaining that age, the ECO will need to consider the question of whether the civil partnership is valid.

No child under 16 is able to contract a valid civil partnership in the UK.

There are two requirements which have to be met before an overseas civil partnership with one party who was under the age of 16 at the registration of the partnership can be recognised under the laws of the UK:

• the civil partnership is valid in the country in which it took place (that is, it is legal for parties under 16 to enter into a civil partnership and the civil partnership itself complied with the formal requirements of the country in which it took place);
• both parties to the civil partnership had the legal capacity under the law of their domicile to enter into a civil partnership with each other (that is, the law of their domicile allowed civil partnership with a person under 16, and they were free to enter into a civil partnership in other respects).

6. SET4.6 What evidence is required of “intention to live together?”

Intention to live permanently with the other means an intention to live together, evidenced by a clear commitment from both parties that they will live together permanently in the UK immediately following the outcome of the application in question or as soon as circumstances permit.

In assessing this part of the Rules it is useful, if possible, to have the views of both parties tested by the ECO. Where both partners are clearly committed to stay together irrespective of whether they live in the UK or not, the intention to live together will be shown. However, if it is clear that the sponsor will not leave the UK to live with the applicant elsewhere should the application for entry clearance be refused, the ECO will need to examine the reasons for this and how this bears on the relationship between the parties.

7. SET4.7 Tribunal decisions on the intention to live together.

In a case considered in the High Court in November 1996 Keen J held that:

‘The concept of intention is no doubt a complex one, but it appears to me that one can indeed have a genuine intention, notwithstanding that the carrying out of that intention is dependent on, or could be frustrated by, some extraneous event.’

He went on to conclude that the requirement of the Rules relating to the intention of the parties to the marriage could be met where the British citizen (or legally resident foreign national) spouse insisted on remaining in the UK. In other words, a conditional intention to live together could be sufficient to meet the ‘intention to live together permanently’ requirement.

8. SET4.8 Residence after arrival in the UK.

The timing and nature of a decision regarding residence, who took the initiative and the way in which the decision was reached may be important factors in assessing whether or not the couple intend to live together permanently. The ECO should consider:

• If the couple have not discussed and agreed where they will live, if only in the short term, why is this?
• If the couple have discussed where they will live; when, how and by whom was the decision taken?
• Is the civil partnership conditional upon the applicant securing admission to the UK?
• If the civil partnership is conditional upon this, who made the condition and why?
• If the application is unsuccessful would the sponsor live with the applicant in his / her present country of residence or elsewhere?

9. SET4.9 Is there a requirement to have met?

Yes.

10. SET4.10 Tribunal decisions on the requirement to have met

There have been a number of Tribunal determinations on how to interpret the phrase ‘to have met’.

The following determinations are intended for guidance only. The ECO should be wary of routinely referring to Tribunal precedents when compiling explanatory statements. With case law constantly evolving there is a danger that precedent may be out of date by the time the ECO quotes it in support of a decision.

In Balvinder Singh, the Tribunal equated ‘to have met’ with ‘to have made the acquaintance of’. They took the view that it would be difficult to argue convincingly that two infants lying in cots side by side could satisfy the requirement ‘to have met’ but that it would not be so difficult to argue that children of 11 or 12 could be acquaintances of each other.

In each case, whether the parties have made the acquaintance of each other will be a question of fact. There is no necessity for any meeting to have taken place in the context of the proposed marriage.

In Rewal Raj, a differently constituted Tribunal took the same view of ‘to have met’, that is, that it implies a requirement ‘to have made the acquaintance of’.

In Abdulmajid Esmail Jaffer, the Tribunal endorsed the previous views and went on to say that ‘to have met’ meant something more than a mutualsighting.

They also felt that a mere coming face-to-face followed by telephone or written contact would be insufficient to satisfy the rule, as would a family background together with such a face-to-face meeting. In their view the essential test of whether the rule had been satisfied was whether the couple had had a face-to-face meeting which in itself had resulted in the making of mutual acquaintance.

11. SET4.11 Internet relationships and the requirement to have met.

A relationship that has developed over the Internet would not satisfy the ‘to have met’ requirement unless the relationship included a personal face-to-face meeting between the couple concerned. Evidence of a face-to-face meeting might include a travel history, relevant email exchanges etc.

12. SET4.12 What if a couple have not met?

If the couple have not met by the time the ECO makes a decision on the application (that is, if they have either not seen each other at all or not met in the sense of ‘to have made the acquaintance of’) all aspects of the application should still be considered in accordance with the other requirements of the Rules (that is, intention to live together, maintenance and accommodation etc) before any refusal notice is issued. Obviously, there will be cases where ‘not having met’ is the sole reason for refusal.

13. SET4.13 What to do after an initial refusal on the grounds of not having met.

If, after an initial refusal on the grounds of not having met, the couple can satisfy the ECO that a meeting in the sense of ‘making the acquaintance of’ has since taken place, the ECO must review the original decision and consider whether refusal is still maintained.

This review can take place after an appeal has been lodged and in the majority of cases, assessing whether or not this ‘new evidence’ meets the requirements of the Rules (see below) should be straightforward. This review need not be on the basis of a fresh application and fee, so long as any appeal papers have not been requested for a hearing (AIT-11 / AIT-2). Where an appeal has been determined then a fresh application and fee will be appropriate.

If the ECO then considers that there is no impediment to the issue of an entry clearance, the applicant should be invited to withdraw any appeal that may have been lodged (although an appellant has the right to proceed with an appeal, whatever action is being taken by an ECO) and entry clearance may be issued on the basis that the other requirements under paragraph 281 have also been met. Post must notify the AIT. Post must complete and email the withdrawal of decision letter (copy found in ECG Toolkit) to the AIT dedicated mailbox: eco.contact@dca.gsi.gov.uk and type ‘withdrawal of notice of decision’ in the subject heading.

If, despite having satisfied the criterion of having met, the application still falls to be refused on other grounds in the original Notice of Refusal, the ECO should maintain the decision and inform by letter the applicant and sponsor and AIT of the amended reasons for refusal. If an explanatory statement has already been despatched then a short addendum should be forwarded to the to the AIT quoting the Post reference number.

14. SET4.14 Assessment of validity of civil partnerships

A civil partnership is a legal relationship registered by two people of the same sex.

Under the UK’s Civil Partnership Act 2004 (which came into force on 5.12.05) a same-sex overseas relationship must either:

• be listed in the following document drawn from Schedule 20 to the Act: Foreign civil partnerships recognised in the UK, which is available on this guidance page; or
• meet the ‘general conditions’ contained in section 214 of the Act (see SET4.15 below).

Where two people have registered an overseas relationship which is specified in Schedule 20, or the relationship meets these general conditions, they will be treated as having formed a civil partnership. The requirements can be found in section 212 and sections 215 - 218 of the Civil Partnership Act.

A same-sex overseas relationship treated as a civil partnership does not require the couple to register in the UK.

15. SET4.15 What are the ‘general conditions?’

If an overseas relationship is not included in Schedule 20, the same-sex couple may still qualify as a civil partnership where the overseas relationship must, under the law of the territory in which it was formed:

• be exclusive in nature (in other words the law must prevent a person from registering a relationship where they are already in a relationship of that kind or are lawfully married);
• be indeterminate in duration (this would exclude an arrangement where the parties agreed to live together for a fixed period of time); and
• result in the parties being treated as a couple or treated as married (this would exclude schemes like some local registers which have no legal effects under the law of that country or territory).

16. SET4.16 Ceremonies which take place in foreign missions in the UK

Consular marriages and civil partnership ceremonies that take place in foreign missions in the UK are not legal under UK marriage laws and are therefore not valid for entry clearance applications, unless the premises are approved by the local authority for the solemnisation of marriages / civil partnerships.

To check if a venue is approved:

• For England and Wales: General Register Office, England & Wales
• For Scotland: General Register Office for Scotland
• For Northern Ireland: General Register Office for Northern Ireland

Divorces or dissolutions in the case of civil partnerships, that take place in foreign missions in the UK are not valid for the purpose of entry clearance applications. The only valid way of divorcing in the UK and Islands (Channel Islands and Isle of Man) is by obtaining a decree absolute (not a decree nisi) from a civil court. The Civil Partnership Act states explicitly that a civil partnership ends on the issue by a court of a dissolution order, or a nullity order in the case of a material defect, that is, the age or mental capacity, of either party to the civil partnership. An application for a dissolution order cannot be made to the court before the end of the period of one year from the date of the formation of the civil partnership.

17. SET4.17 What if the civil partnership requirements for UK recognition are not met?

If a same-sex couple are in an overseas relationship that is not included in Schedule 20 or cannot meet the requirements of the general conditions, the applicant will need to meet the requirements of the same-sex partners’ paragraphs of the Immigration Rules to be able to come to the UK under the settlement provisions.

18. SET4.18 Is there provision for bereaved civil partners?

Although rare, cases can occur where a sponsor dies before his / her civil partner is able to complete the probationary period and apply for indefinite leave to remain (ILR).

In the unlikely event that the ECO receives such an application overseas, the details of the application should be referred to UK Visas and Immigration for a decision, using the HOReferrals mailbox. In such cases UK Visas and Immigration may grant ILR providing the relationship was subsisting at the time of the sponsor’s death.

19. SET4.19 What is the endorsement for civil partners?

See ECB13 Endorsements

20. SET4.20 What immigration conditions apply upon entry to a civil partner applicant?

• The applicant will normally be admitted for an initial period not exceeding 27 months.

After satisfactory completion of this period, Indefinite Leave to Remain (ILR) may be granted.

However, where an applicant:

• has been in a civil partnership with the sponsor for at least four years and they have been living together outside the UK during that time; and
• has sufficient ‘knowledge of the English language and sufficient knowledge about life in the UK (KOL), unless he/she is aged 65 or over at the time of the application (see SET16 KNowledge of Language and Life in the UK); and
• the sponsor has (at the date of decision on the application) a right of abode / indefinite leave to enter; then Indefinite Leave to Enter (ILE) may be granted.

Where an applicant has satisfied all of the requirements for ILE, except the KOL requirement, the applicant should be granted 27 months leave to enter. During this time they can, at any point, satisfy the KOL requirement and then apply for indefinite leave to remain (ILR) in the UK.

21. SET4.21 Do civil partners have the right of appeal?

Yes, they have a full right of appeal.