Guidance

Fiancé(e)s: SET01

Published 6 July 2012

This guidance was withdrawn on 17 March 2022

This guidance is out of date and has been withdrawn.

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. SET1.1 What is the definition of a fiancé(e)?

A fiancé(e) is a person who wishes to enter the UK with a view to marriage to a sponsor who is either:

• already present and settled in the UK; or
• will be admitted for settlement in the UK when arriving there, and,
• intends permanent settlement in the UK.

2. SET1.2 What is the definition of a sponsor?

In a fiancé(e) application the term ‘sponsor’ refers to the person whom the applicant is intending to marry.

3. SET1.3 How do fiancé(e)s qualify?

Immigration Rules Paragraphs 289AA - 295

Children of fiancé(e)s may also qualify for admission. This is dealt with in the SET07 Children section.

4. SET1.4 What if an applicant already has leave to remain?

Under review.

5. SET1.5 What is ‘present and settled’?

Present and settled means that the sponsor is either:

• settled in the UK, 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 travelled abroad to accompany the applicant in making the application, this will not prejudice 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 and HM Forces and DFID please visit:

SET06 Partners of members of the Diplomatic Service / British Council / HM Forces and 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).

6. SET1.6. What is the age requirement?

Immigration Rules Paragraph 289AA

An application by a fiancé(e) should be refused if:

• The applicant will be aged under 18 on the date of arrival in the UK; or
• The applicant’s fiancé(e) is aged under 18.

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

7. SET1.7 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.

8. SET1.8 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.

9. SET1.9 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 marriage conditional upon the applicant securing admission to the UK?
• If the marriage 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?

10. SET1.10 Is there a requirement to have met?

Yes.

11. SET1.11 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 mutual sighting. 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.

12. SET1.12 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.

13. SET1.13 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 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.

14. SET1.14 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 290 have also been met. Post must notify the AIT. Post must complete and email the withdrawal of decision letter (copy found in 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 AIT quoting the post reference number.

15. SET1.15 What evidence is required to prove freedom to marry?

For single adults, the Registrar normally accepts the parties’ declaration that they are free to marry. The ECO should, therefore, accept a similar verbal statement by an applicant, together with any supporting correspondence from the person he / she is going to marry. This is unless there are strong grounds to believe that one of the parties is still married/in a civil partnership or has been married / in a civil partnership previously and is concealing this fact. In such cases the ECO should make whatever enquiries as seem appropriate.

The ECO should warn anyone going to the UK for marriage who has previously been married / in a civil partnership that he / she may be required to provide the Registrar with evidence of freedom to marry before the Registrar can accept a notice of marriage.

Where the ECO has doubts about an applicant’s intention to marry, the ECO should ask to see evidence of freedom to marry before issuing an entry clearance:

• Widowed person: death certificate of the late spouse.
• Surviving civil partner: death certificate of the deceased civil partner.
• Divorced person: evidence of divorce eg a divorce certificate. NB for the UK this is a decree absolute divorce certificate - this is stated on the order from the Family Court. A person is not legally divorced until the decree absolute is issued. A decree nisi is not acceptable evidence.
• SET13 Overseas divorces
• Dissolved civil partnership: evidence of the dissolution, for example, dissolution certificate.

16. SET1.16 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 civil marriage:

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

Divorces 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.

17. SET1.17 What if the divorce / dissolution process is not yet finalised?

An entry clearance should not be refused for this reason alone. The ECO would normally expect to see evidence that the divorce / dissolution proceedings are well under way.

While the divorce / dissolution may well come through within the 6-month Leave to Enter (LTE) period, thereby enabling the couple to marry, the ECO should be aware that divorce / dissolution proceedings may take longer than 6 months to resolve.

Should one of the partners still be waiting for a divorce / dissolution to come through at the end of the 6-month LTE period, they may apply to UK Visas and Immigration for an extension of stay. Once married, the applicant may then apply for Leave to Remain (LTR) as a spouse.

18. SET1.18 What evidence is required of marriage arrangements?

The ECO needs to be satisfied that it is intended that a marriage in the UK will take place.

The law relating to marriage in England and Wales does not allow for any arrangements to be made with a Registrar until the foreign national has arrived in the UK. Of itself, a booking at a Register Office or church is not proof that a marriage will take place.

The ECO can reasonably expect the couple to have made some tentative plans for the wedding. Any evidence that may be available that wedding arrangements are in hand may help in this respect.

19. SET1.19 Reluctant fiancé(e)s (under review)

Where forced marriage is suspected, the ECO should contact the Forced Marriage Unit (FMU) on 020 7008 0151 or fmu@fco.gov.uk for guidance.

UK Visas and Immigration - Immigration directorate instructions Annex A2 - Forced marriage

20. SET1.20 What is the endorsement for fiancé(e)s?

See ECB13 Endorsements

21. SET1.21 What immigration conditions apply upon entry to a fiancé(e) applicant?

• The applicant will initially be admitted to the UK for 6 months, and
• be prohibited from taking employment until after marriage.

Once the marriage has taken place and after satisfactory completion of a probationary period set by the UK Visas and Immigration (normally 24 months), Indefinite Leave to Remain (ILR) may be granted on application to the UK Visas and Immigration.

22. SET1.22 Do fiancé(e)s have a right of appeal?

Yes there is a full right of appeal.

23. SET1.23 What is the refusal wording for fiancé(e)s?

See Refusal (RFL)

24. SET1.24 What are the requirements for a visit for marriage?

See Visit and Transit (VAT)