Individuals wishing to come to the UK on the basis of their relationship to a British citizen or person present and settled in the UK must apply for entry clearance to enter the UK in that capacity. Non- EEA citizens and visa nationals do not have an automatic right to settle in the UK on the basis of their relationship.

Spousal visa: spouses & civil partners

The requirements are set out in paragraph 281 of the Immigration Rules which provides:

(i) (a) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; or

(b)(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and

(b)(ii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application; and

(ii) the parties to the marriage or civil partnership have met; and

(iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and

(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and

(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and

(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.

Marriage to a British national

An individual may apply for a spousal visa if they are married to someone with indefinite leave to remain in the UK (settled status) or someone who is a British citizen. Following changes made last year, both parties must now be 21 years of age in order to qualify for a spousal visa. There may be instances where an application can still be made if one of the parties does not meet the age criteria however; this requires a case specific evaluation with our immigration lawyers.

The entry clearance officer considering such applications should also consider Article 8 of the European Convention on Human Rights which guarantees the right to respect for private and family life.

Refugee sponsors who were granted refugee status prior to 30 August 2005 would have been granted indefinite leave to remain in the UK. Applicants joining such sponsors if successful should be granted indefinite leave to enter the UK in line with the sponsor.

Refugee sponsors granted refugee status after this date would be granted five years limited leave to remain in the UK. Applicants seeking to join these sponsors will be granted leave in line with the sponsor and their leave will be subject to review at the expiry of their leave.

There is no fee for applications made under the family reunion policy and the sponsor does not have to meet the maintenance and accommodation requirements.

It should be noted that at present, there is no requirement for applicants to pass the English language test. Also, there is no provision for children under the age of 18 who are recognised as refugees to sponsor their family members to the UK. However, where there are compelling or compassionate circumstances involved, these may be considered by the entry clearance officer.

Fiancé(e) visas and proposed civil partners

The requirements are contained in paragraph 290 of the Immigration Rules which need to be fulfilled in order to enter the UK in this capacity:

(i) the applicant is seeking leave to enter the United Kingdom for marriage or civil partnership to a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and

(ii) the parties to the proposed marriage or civil partnership have met; and

(iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner after the marriage or civil partnership ; and

(iv) adequate maintenance and accommodation without recourse to public funds will be available for the applicant until the date of the marriage or civil partnership ; and

(v) there will, after the marriage or civil partnership, be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and

(vi) the parties will be able after the marriage or civil partnership to maintain themselves and any dependants adequately without recourse to public funds; and

(vii) the applicant holds a valid United Kingdom entry clearance for entry in this capacity

Once married, the fiancé/fiancée will then be able to apply for a spousal visa which will entitle them to live and work in the UK. In respect of fiancé (e) visas, the applicant is expected to marry the sponsor within 6 months of entry. If the marriage cannot take place during this period, then an application to extend leave should be made explaining the reasons why.

Unmarried and same-sex partners

The requirements can be found in paragraph 295A

(i) (a) the applicant is the unmarried or same-sex partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement and the parties have been living together in a relationship akin to marriage or civil partnership which has subsisted for two years or more; or

(b)(i) the applicant is the unmarried or same-sex partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties have been living together outside the United Kingdom in a relationship akin to marriage or civil partnership which has subsisted for 4 years or more; and

(b)(ii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application; and

(ii) any previous marriage or civil partnership (or similar relationship) by either partner has permanently broken down; and

(iii) the parties are not involved in a consanguineous relationship with one another; and

(iv) DELETED

(v) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and

(vi) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and

(vii) the parties intend to live together permanently; and

(viii) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.

The Important thing to note is that applicants must have been living in a relationship akin to marriage for at least two years regardless of whether the partners are heterosexual or homosexual.

Spouses or unmarried partners of EEA nationals

Applicants must apply for an EEA family permit prior to their arrival in the UK. This is normally valid for one year after which the applicant can apply for a UK residence permit, usually issued for five years. An application for indefinite leave to remain can be made after 4 years continuous residence in the UK.

Surinder Singh cases

The European Court of Justice (ECJ) in the case of Surinder Singh held that a British national and their third country national family members can, in certain circumstances, benefit from EU law. Essentially, it held that nationals of a member state who go with their non-EEA family members to another Member State to exercise a Treaty right in an economic capacity, will on return to their home state, be entitled to bring their non-EEA family members to join them under EC law. (*Source taken from the UK Border Agency website)

Common grounds for refusal

We have come across many cases where individuals have been denied a visa for failing to meet the requirements according to the entry clearance officer (ECO) at the British post abroad. Most decisions will carry a right of appeal that must be exercised within 28 calendar days of receiving the decision.

Some of the most common reasons for refusal are cited as follows:

1. Lack of sufficient documents including:

·         No evidence that UK based sponsor  can maintain the applicant

·         Misconception that third party support is allowed (in respect of maintenance)

·         Lack of evidence to show adequate accommodation or that there will not be overcrowding

2.  Marriage not conducted lawfully or accepted as genuine including:

·         Lack of contact between  sponsor and applicant (i.e. emails/telephones bills/letters)

·         Proxy marriages not conducted in accordance with laws of the country in which they took place

3. The Age requirement is not met i.e. one of the couples is under 21 years of age

There are some cases where married, unmarried or same-sex couples can be eligible for indefinite leave to remain straight away for instance, where they have been living together for four years or more outside the UK.

At Ergen & Sharif, our experienced lawyers can assist you whether you are making an initial or fresh application, whether you have been refused and wish to exercise a right of appeal or even where you have been denied a right of appeal.

For further information on how we can help, please contact us on 0207 569 3035 or alternatively email us at info@ergensharif.co.uk