ICS Legal

There are various types of visa applications for the purpose of settlement in the United Kingdom. One such application is the Spouse Visa. The Spouse visa allows a person who is in a relationship with another, who is settled in the United Kingdom or is applying to settle in the UK, permission to enter or remain in the UK with a view to settlement as his/ her Husband, wife, civil partner or unmarried/ same-sex partner.

What does ‘present and settled mean?

‘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 Immigration rules 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”.

In order to fully understand the position within the immigration rules, let us look at some basic definitions.

What is a Spouse? – A spouse is defined as the husband / wife of the sponsor and the sponsor is defined as the person to whom the applicant is married. The rules that govern Spouse Visas can be found in Paragraphs 277 – 289 of the Immigration rules HC395.

It is is very important to comply with the age requirement when applying for the Spouse visa. The main restriction is covered by Paragraph 277 which states that; “Nothing in these Rules shall be construed as permitting a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as a spouse or civil partner of another if either the applicant or the sponsor will be aged under 21 (or aged under 18 if either party is a serving member of HM Forces) on the date of arrival in the United Kingdom or (as the case may be) on the date on which the leave to remain or variation of leave would be granted.”-

Quite simply, this means that an application by a spouse should be refused if:

• The applicant will be aged under 21 on the date of arrival in the UK; or
• The applicant’s spouse will be aged under 21 on the date of arrival in the UK.

This is a very stringent rule where very little if at all no discretion is given except in cases where the applicant is within a couple of months of their 21st birthday, and the other party is 21 or over, the ECO has discretion to issue entry clearance but valid only from when the person under 21 has reached their 21st birthday.

LEAVE TO ENTER – Paragraph 281 Applications

If you are making your application from outside the UK, so the immigrant spouse or partner is abroad, then they must obtain entry clearance, regardless of whether they are a Visa or a Non-visa national. and subject to Immigration control. They will need to apply for Entry clearance as a Spouse at the nearest British Embassy post in their country of residence. This does not mean that you have to apply from your Home Country or necessarily, the country of which you are a citizen. You can apply from any country as long as you are classified to be a “resident” there.

For example, Alex is on holiday for 2 weeks in Spain. He wishes to settle with Maria, his wife who is a British Citizen and lives in the UK. Can Alex apply for a Spouse visa in Spain? The answer is “NO” as Alex does not have residency rights in Spain. He is merely there on a short visit for the purpose of a holiday.

When applying for permission to come to the UK in this category, the following requirements alongside the age requirement must be met. These requirements can mainly be found in Paragraphs 281 of the Immigration Rules HC395

Your husband, wife or civil partner must be at least 21 years old (or 18 years old if you or they are a serving member of HM Forces), and must be:

• currently living and settled in the UK; or
• returning to the UK with you to live here permanently.

You must show that:

• You are legally married to each other or have registered a civil partnership. (In this case, having a valid marriage certificate or a properly certified copy issued by the authorities in the country where the marriage ceremony took place would be good supporting evidence. A marriage ceremony that is legally recognised by the authorities of the country in which the ceremony took place will usually be legally recognised in the UK)

• You are going to live together permanently as husband and wife, or as civil partners;
• You have met each other;
• You can support yourselves and any dependants without help from public funds. (This is one of the main requirements, often dubbed, the “maintenance” requirement. Although there is no actual figure stated in the rules to say how much is considered as sufficient, it will usually be assessed by looking at the income and expenditure of the sponsor. The most important question the UKBA will be asking is after the expenditure is subtracted from the income, is the total amount left sufficient to support the parties involved. If the answer is “NO”, the likelihood is that this requirement will not be fulfilled which may result in the application being refused. Sponsors who are currently on social security benefits should be particularly aware as although, they are entitled to apply; the likelihood is that although the spouse is not themselves applying for the benefits, the amount of benefits may increase due to their joining the particular household. If this is likely, the application may also fall short of meeting the maintenance requirement. If the family as a whole do not have funds equal to or in excess of the funds a family their size would receive from welfare benefits, then the ECO/IO is likely to refuse.

This is a matter of fact and may require the help of a Welfare Rights specialist. In general, it is very hard for a sponsor on benefits to show adequate support for new arrivals, without seeking help from a third party. Broadly speaking, where the financial and housing scenario is not clear, the ECO/IO is likely to refuse and leave it to an Immigration Judge to decide.

Maintenance and accommodation can be provided by a third person, that is to say, not directly by the applicants themselves (for example, relatives or in-laws). Usually this will only be acceptable if it is to be short term, for example, whilst a spouse or civil partner is looking for a job. (Despite the wording of the Immigration Rules, the Home Office accepts that accommodation can be shared with other members of a family provided that at least part of the accommodation is for the exclusive use of the sponsor and his dependents, and subject to housing regulations on overcrowding) and if the settled person has more than one husband or wife, only one husband or wife will be allowed to join them here in this category.

LEAVE TO REMAIN – (‘In-Country’) – Paragraph 284 Application

Applications for leave to remain are also known as ‘In-Country’ applications. They are covered by Paragraph 284 of the Immigration rules. This is the Rule for switching from another category to a Spouse visa category. It is not the Rule for extending leave for those who have entered under Paragraph 281. However, the following are excluded from applying and are expected to apply from abroad:

• those admitted for a period of six months or less (e.g. Visitors)
• those admitted for more than six months, but who have not yet spent 6 months in the UK
• those who have remained in breach of the Immigration Rules relating to their status
• those who have married in the UK after a decision has been made to deport the applicant
• those who have married in the UK after there has been a recommendation for deportation
• Those who have been given notice that a recommendation is under consideration following conviction for an offence.

Paragraph 284 is written with the presumption that the applicant has entered as a fiancé, or in a non-settlement category but has since married in the UK. Please be aware that in cases, where a Spouse visa has been refused, the applicants have full rights of appeal.

In-Country Procedures

If you plan to get married or register your civil partnership in the United Kingdom and you are subject to immigration control while in the United Kingdom, you may need to apply for a Certificate of Approval. The rules on certificate of approval do not apply to you if you:

• are a British citizen; or
• are a national of a country in the European Economic Area (EEA); or
• are the family member of an EEA national and have right of residence in the United Kingdom but are not yourself an EEA national; or
• have in your passport a certificate of entitlement giving you right of abode in the United Kingdom; or
• Are not subject to immigration control.
• If you are coming to the United Kingdom from overseas to get married or register your civil partnership, before you can give a registrar notice to marry or register your civil partnership you must have in your passport:
• fiancé(e) entry clearance; or
• proposed civil partner entry clearance; or
• marriage visitor entry clearance; or
• civil partnership visitor entry clearance.
• If you are already in the United Kingdom, before giving a registrar notice to marry or register your civil partnership you will need to:
• have settled status in the United Kingdom; or
• obtain a certificate of approval.

Successful Applications

If an application was made under Para 281(i)(a), leave will be granted for an initial two-year period; this is called “the probationary period “on condition that the spouse or civil partner does not have ‘recourse to public funds’. The spouse or civil partner will be free to work and should apply to the UK Border agency for indefinite leave to remain not earlier than 28 days before their leave is due to expire.
If an application was made under 281(i)(b), (that is, where the applicant has been married or in a civil partnership and living outside the UK for at least four years with a person who has right of abode or indefinite leave), then the applicant will be granted indefinite leave to enter, and will therefore have no conditions attached to the leave.

For applications under Paragraph 281, the form VAF4a is used which can be downloaded from the UK visas website. Following an application under Paragraph 284 (Leave to Remain). An extension of stay as a spouse will be granted for a period of two years in the first instance (see Paragraph 285). In order for the application to be valid, it must be made before the expiry of the applicant’s existing limited leave.

Indefinite Leave to Remain

After the 2 year probationary period, the Applicant will be entitled to apply for Indefinite Leave to Remain which is covered in Paragraphs 287-289 of the Immigration Rules, HC 395. The application must be made before the two years expire – preferably a month prior to expiry.

An application for indefinite leave on the basis of marriage is made to the Home Office on form SET(M).

Anyone applying for naturalisation as a British citizen or for indefinite leave to remain needs to show that they know about life in the UK.
Knowledge can be demonstrated by taking the Life in the UK Test (the Britishness Test) or by studying combined English for Speakers of Other Languages (ESOL) and citizenship classes. The test consists of 24 questions based on the information contained in the handbook “Life in the United Kingdom: A Journey to Citizenship”.

New English language testing for partners

In June 2010 the government announced plans to introduce compulsory English language tests for all non-European migrants applying to come to the UK to join or marry their settled partner. The UK Border Agency has announced that these plans will be implemented from 29 November 2010. From this date, any migrant who wants to enter or remain in the UK as the partner of a British citizen or a person settled here will need to show that they can speak and understand English, by taking an English language test with one of their approved test providers.

The new rules will apply to anyone applying as the husband, wife, civil partner, unmarried partner, same-sex partner, fiancé (e) or proposed civil partner of a British citizen or a person settled in the UK. They will be compulsory for people applying from within the UK as well as visa applicants from overseas. The Home Office is due to publish more information, including a list of approved test providers, before the change is introduced.

Paragraph 287(b), HC 395 gives provisions for Bereaved spouses and under paragraph 289A, it is possible to apply for indefinite leave to remain if the marriage breaks down during the two-year probationary period due to domestic violence, provided certain evidence can be supplied. The above cases are however rare and it may be advisable to seek advice from a specialist when making applications under these provisions.

In conclusion, If your marriage, civil partnership or other relationship permanently breaks down while your partner still has only limited permission to enter or remain in the United Kingdom (that is, during the two-year probationary period before he/she can apply to live here permanently), you should tell the UK Border as soon as possible to avoid braking the Immigration Rules as this may affect future Leave to Remain in the UK applications.

Disclaimer: This article only provides general information on immigration law. It is not intended to replace the advice or services of a Solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of use of this information.