Guidance

Unmarried and same-sex partners: SET05

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. SET5.1 What is the definition of a sponsor?

In applications from unmarried or same sex-partners, the sponsor is the person with whom the applicant is in a relationship and intends to continue living with.

2. SET5.2 Who can sponsor an unmarried / same-sex partner for a settlement application?

The Rules allow for a person who is not married nor in a civil partnership to join a partner who is settled in the UK, provided certain conditions are met.

The Rules on unmarried and same-sex partners also apply to partners of sponsors in the UK who have limited leave to enter or remain in the following categories:

  • Work Permit holders,
  • overseas media representatives,
  • sole representatives,
  • private servants in diplomatic households,
  • overseas government employees,
  • Ministers of Religion,
  • airport-based operational ground staff,
  • UK Ancestry,
  • businessmen / businesswomen,
  • self-employed,
  • investors,
  • writers,
  • composers,
  • artists and
  • retired persons of independent means.

EEA nationals

Under Regulation 12 of the EEA Regulations 2006 an EEA national [link to list of EEA nationals] residing or intending to reside in the UK in accordance with the Regulations may sponsor their partner’s application for a family permit (a form of entry clearance issued to non-EEA national family members). A non-EEA national unmarried / same-sex partner of an EEA national will need to show that they are in a durable relationship with the EEA national. See guidance in European Nationals and Schemes.

3. SET5.3 What about the unmarried / same-sex partners of accredited foreign diplomats posted to the UK?

Unmarried / same-sex partners of diplomats are not exempt from immigration control, nor do they benefit from privileges and immunities under the Vienna Convention on Diplomatic Relations 1961. However, a foreign national may apply for UK entry clearance as the unmarried / same-sex partner of an accredited diplomat posted to or based in the UK for the duration of the partner’s posting.

There will be no need for applicants to satisfy the usual two-year cohabitation condition applied to other unmarried / same-sex partner applications.

Such individuals will be allowed to take employment in the UK, but unlike the unmarried / same-sex partners of British citizens / persons legally settled in the UK will not qualify for settlement on the basis of their relationship.

In order to qualify for entry clearance under this concession the unmarried / same-sex partner of a diplomat will have to show that:

  • the relationship is recognised as durable by the sending State;
  • the relationship is akin to marriage; and
  • the couple intends to live together in the UK for the duration of the posting.

This visa will be a long-term non-settlement visa. It should be issued gratis.

Endorsement:

D: To Join/Acc Partner: 2 years: Code 1 (Add initials, surname of sponsor and Embassy / High Commission)

4. SET5.4 How do unmarried / same-sex partners qualify?

Immigration Rules Part 8 paragraphs 295AA - 295O.

5. SET5.5. 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 Settlement (SET) section on members of 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.

6. SET5.6 What is the age requirement?

Immigration Rules Paragraph 295AAAn application by an unmarried or same-sex partner should be refused if:

  • the applicant will be aged under 18 on the date of arrival in the UK; or
  • the applicant’s unmarried or same-sex partner is 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

7. SET5.7. 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. SET5.8 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. SET5.9 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 partnership conditional upon the applicant securing admission to the UK?
  • If the 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?

10. SET5.10 What evidence is required that any previous marriage / civil partnership or similar relationship has permanently broken down?

Each of the parties to the unmarried or same-sex partnership is required to provide evidence regarding any previous marital or other relationship akin to marriage / civil partnership they have had. They should be asked to specify how long ago the previous relationship was terminated, either by divorce / dissolved civil partnership, by separation or by death:

  • Widowed person: death certificate of the late spouse.
  • Surviving civil partner: death certificate of the deceased civil partner.
  • Divorced person: evidence of divorce, for example, a divorce certificate. Note: 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. See SET13 - Overseas divorces.
  • Dissolved civil partnership: evidence of the dissolution, for example, dissolution certificate.

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:

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.

11. SET5.11 What if there are compelling and compassionate circumstances?

Where there are compelling compassionate circumstances the following applications in respect of unmarried or same-sex relationships may be referred to Referred Cases Unit (RCU) for consideration outside of the Rules:

  • where there are children, and / or
  • the relationship may be less than 2 years’ duration.

An appropriate pro-forma and full supporting details should accompany such referrals.

12. SET5.12 Assessing whether the relationship has subsisted for two years

‘Living together’, should be applied fairly tightly, with a couple providing evidence that they have been living together in a relationship akin to marriage or civil partnership which has subsisted for two years or more.

Periods apart for up to six months would be acceptable for good reasons, such as work commitments, or looking after a relative as long as:

  • it was not possible for the other partner to accompany; and
  • the applicant can show evidence that the relationship continued throughout that period, for example, by visits, letters, logged phone calls.

13. SET5.13 What types of evidence might demonstrate living together and a relationship akin to marriage / civil partnership?

The applicant must provide six pieces of correspondence addressed to him / her and their partner at the same address as evidence that they have been living together during the past 2 years. The items of correspondence should be addressed to them jointly or in both their names. If they do not have enough items in their joint names, they may also provide items addressed to each of other individually if they show the same address for both of them. The documents provided must be originals and should be spread over the whole 2 years; they should also be from at least 3 different sources. Examples of what documentation the applicant could provide are listed below:

  • Joint commitments, (such as joint bank accounts, investments, rent agreements, mortgage, life insurance policy naming the other partner as beneficiary etc);
  • Birth certificates or records of any children of the relationship, showing both partners as parents;
  • Any official correspondence linking both partners to the same address, for example Council Tax, utility bills, Doctors records;
  • Any other evidence that adequately demonstrates the couple’s long-term commitment to each other.

14. SET5.14 What is the endorsement for unmarried / same-sex partners?

See Endorsements (ECB13)

15. SET5.15 What immigration conditions apply upon entry to an unmarried / single sex partner?

ILE can be granted in situations where:

  • the sponsor has (at the date of decision on the application) a right of abode / indefinite leave to enter and;
  • the couple have been living in a relationship akin to marriage for at least 4 years and have been living together outside the UK during that time and;
  • the applicant has demonstrated ‘knowledge of language and life in the UK’ (KOL)

Where an applicant has satisfied all of the requirements for ILE, except the KOL requirement, they 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 in the UK.

16. SET5.16 Do unmarried / same-sex partners have the right of appeal?

Yes, they have a full right of appeal.

Under the EEA Regulations 2006 Third country unmarried and same sex partners of EEA nationals have an out of country right of appeal under Regulation 27 (1) (c) against a decision to refuse a family permit.