Definitions and terms and conditions of those who seek to enter United Kingdom as a spouse/fiancee of a Someone settled in the UK
13.1 - Definitions
A fiancé(e) in this context is a person who
wishes to enter the UK with a view to marriage to a person who is either
already present and settled in the United Kingdom;
or
will be admitted for settlement in the UK when arriving there, and intends permanent settlement in the United Kingdom.
A spouse is a person who qualifies to live permanently in the United Kingdom because he/she is married to a person who is either present and settled in the UK or will be admitted for settlement in the UK when arriving there.
13.2 - Immigration conditions upon entry to the United Kingdom
A person holding an entry clearance as a fiancé(e) will initially be admitted to the United Kingdom for 6 months, with a prohibition on employment until after marriage. Once the marriage has taken place and after satisfactory completion of a probationary period (normally 24 months) set by the Home Office, indefinite leave to remain may be granted.
A person holding an entry clearance as a spouse will normally be admitted to the United Kingdom for an initial period of 24 months. After satisfactory completion of this period, indefinite leave to remain may be granted. However, where an applicant has been married to a UK citizen and both have been living abroad for more than 4 years, Indefinite Leave to Enter may be granted.
Definition of sponsor in fiancé(e)/spouse/unmarried partner applications
In a fiancé(e) application, the term ‘sponsor’ refers to the person whom the applicant is intending to marry.
In an application as a spouse, the sponsor is the person to whom the applicant is married. In applications from unmarried partners, the sponsor is the person with whom the applicant intends to live.
Fiancé(e)s and how they qualify (Rules paragraphs 290 -295)
For an applicant to qualify for admission as a fiancé(e), you must be satisfied that:
the sponsor is present and settled in the United Kingdom, or is to be admitted for settlement at the same time as the applicant arrives in the UK;
the sponsor and the applicant are aged 18 or over;
each of the parties intends to live permanently with the other as his or her spouse after the marriage;
the parties to the proposed marriage have met;
adequate maintenance and accommodation without recourse to public funds will be available for the applicant until the date of the marriage;
after the marriage there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively;
after the marriage the parties will be able to maintain themselves and their dependants adequately without recourse to public funds.
You should also be satisfied that there is no impediment to the proposed marriage (see section 13.9 below for instructions).
Guidance on how to assess the above qualifications is given in the remainder of this chapter except for that on maintenance and accommodation which is given in Chapter 9.
Children of fiancé(e)s may also qualify for admission. This is dealt with in Chapter 14.
13.5 - Spouses and how they qualify (Rules paragraphs 277 - 289)
For an applicant to qualify for admission as a spouse, you must be satisfied that:
the sponsor is present and settled in the United Kingdom, or is to be admitted for settlement at the same time as the applicant arrives in the UK;
the sponsor is aged 18 or over and the applicant 16 or over;
the parties to the marriage have met;
the marriage is subsisting and each of the parties intend to live permanently with the other as his/her spouse;
there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively;
the parties will be able to maintain themselves and any dependants adequately without recourse to public funds.
Guidance on how to assess the above qualifications is given in the remainder of this chapter except for that on maintenance and accommodation which is given in
Chapter 9 of the handbook.
13.9 - Evidence of freedom to marry and impediments to marriage in the UK
In addition to the requirements of the Rules, you must be satisfied that both parties will be able to contract a valid marriage under United Kingdom law.
The marriage provisions are as follows:
A valid marriage cannot be contracted in the United Kingdom if:
one of the parties to the intended marriage is under the age of 16; or
one of the parties is aged 16 or 17 but does not have parental consent (this does not apply in Scotland); or
one of the parties is not free to marry, i.e. is still legally married to someone else (but see below).
You should warn anyone going to the United Kingdom for marriage who has previously been married, or is aged 16 or 17, 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 you have doubts about an applicant’s freedom to marry, you should ask to see this evidence before issuing an entry clearance. The kind of evidence you will need to see is as follows:
Widowed person: death certificate of the late spouse.
Divorced person: evidence of divorce, e.g.. divorce certificate
Minors (aged 16 or 17): formal consents are required as follows:
-
Normally - both parents (in Scotland no parental consent is necessary; in Northern Ireland parental consent is necessary and the parents’ signatures must be certified by a Commissioner for Oaths or some other authority as specified in the Northern Ireland marriage laws);
-
parents divorced or separated - the parent having legal custody, or both parents if they share custody;
-
desertion - the parent who has been deserted;
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parents deprived of custody - the person having legal custody;
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one parent deceased - the surviving parent (if the deceased parent had appointed a guardian, the surviving parent and guardian if acting jointly, or either if the parent or guardian is the sole guardian);
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both parents deceased - guardians or guardian appointed by the deceased parents or by the courts;
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applicant illegitimate - the mother (or if she has legally been deprived of custody, the person given custody; or if she is deceased, the appointed guardian).
Single persons of full age: the Registrar normally accepts the parties’ declaration that they are free to marry. ECOs should therefore accept a similar verbal statement by an applicant, together with any supporting correspondence from the person he or she is going to marry, unless there are strong grounds to believe that one of the parties is still married or has been married previously and is concealing this fact. In such cases you should make whatever enquiries as seem appropriate.
Evidence of marriage arrangements
Of itself, a booking at a Registry Office or church is not proof that a marriage 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.
The Immigration Rules state that the parties should be free to marry. However, if the only reason for a couple not being free to marry is that one of them is awaiting a divorce, entry clearance should not be refused for this reason alone (though ECOs would normally expect to see some evidence that divorce proceedings are well under way). The reasoning behind this is that the divorce may well come through within the six months leave to enter period, thereby enabling the couple to marry. The applicant may then apply for leave to remain as a spouse. Should one of the partners still be waiting for a divorce to come through at the end of the six-month period, they may apply to the Home Office for an extension of stay.
13.10 - Validity of marriages
In an application for entry clearance from a spouse, you must be satisfied that the parties are validly married to each other.
The recognition of any marriage which has taken place overseas is governed by the following:
Is the type of marriage one recognised in the country in which it took place?
Was the actual marriage properly executed so as to satisfy the requirements of the law of the country in which it took place?
Was there anything in the law of either party's country of domicile that restricted his freedom to enter the marriage?
If the answers to the above questions are respectively "yes", "yes" and "no" then the marriage will be treated as a marriage for the purpose of the "spouse" paragraphs of the Rules, whether or not it is polygamous (but see separate guidance on dealing with applications from polygamous partners).
As there is no legal provision for same sex marriage in the UK, this only applies to a marriage between two persons who are of the opposite sex to one another. Any same-sex marriage (or civil union or any other registered same-sex relationship) valid in another state will not be treated as a marriage for this purpose and any application for leave based on such a relationship must be dealt with under the "unmarried partners" paragraphs of the Rules.
There is no requirement under EC law to recognise the same-sex partners or same-sex spouses of EEA nationals as family members. However, European Community law states that Member States should not discriminate between the same-sex partners of its own nationals and the same-sex partners of EEA nationals. We therefore allow the same-sex partners of EEA nationals to enter the UK as partners (as opposed to family members under the EEA regulations) if they meet the requirements of the unmarried partners" paragraphs of the Immigration Rules.
As the application for entry clearance will normally be made in the country in which the marriage took place, ECOs will be well placed to determine whether a particular marriage is valid under local law.
Marriage by proxy, by telephone or where no ceremony was required
The formal validity of a marriage should be determined exclusively according to the laws of the countries in which both parties are physically present when the marriage takes place. Therefore a telephone marriage celebrated whilst one of the parties is in the UK will not be valid, because telephone marriages are not valid in this country. However, in cases where the UK-based sponsor was overseas when the telephone marriage took place and the laws of both countries recognise such marriages, we cannot deny that the marriage is valid. Enquiries about the marriage laws of other countries may be referred to INPD, Home Office.
Where a marriage has been celebrated will be a question of fact in each case. Where ECOs have doubts, the onus is on the applicant to show that it was celebrated in a country which recognises such marriages. In cultures which regard marriage as consisting of an offer made by a man and accepted by a woman, then the (telephonic) marriage should be considered as having taken place in the country in which the proposal has been accepted i.e. where the wife is. Where the wife is resident in the UK and the offer made from overseas, then the marriage should be considered as having been celebrated in the UK and consequently it will not be valid in UK law. Proxy marriages should be considered as having been celebrated in the country in which the ceremony took place.
If no ceremony is required under the laws of a particular country and a marriage can be concluded by an exchange of promises, it may be difficult to determine the country in which the marriage has been celebrated and under which law it should be considered. You may need to defer a decision on the issue of an entry clearance and request advice from INPD in the Home Office.
The Rules requirement that both parties must have met may have a bearing on proxy or telephone marriages.
An original certificate or properly certified copy should always be obtained unless there are very exceptional reasons why one cannot be produced. ECOs should beware of photocopies of marriage certificates; they may look genuine but could contain altered details.Evidence of marriage
In most cases a marriage certificate will provide satisfactory evidence that a marriage has taken place.
In countries where official registration of marriage is not compulsory (and official marriage certificates are not available) you should normally interview husband and wife separately about the circumstances of their marriage so that your decision can be made on the balance of probabilities.
Action after an initial refusal13.11 - Requirement to have met
If the couple have not met by the time the ECO takes the decision on the application (i.e. 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 (intention to live together, maintenance and accommodation etc) before any refusal notice is issued as such a notice must contain all the grounds for refusal. Obviously, there will be cases where ‘not having met’ is the sole ground for refusal. Some Tribunal decisions quoted below help to define the meaning of "to have met".
If, after the refusal of an entry clearance on the basis of the parties 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 appropriate.
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. If the ECO then considers that there is no impediment to issue of 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.
This review need not be on the basis of a fresh application and fee, so long as any appeal has not been determined. Where an appeal has been determined then a fresh application and fee will be appropriate.
If, despite having satisfied the criteria of having met, the application still falls to be refused on other grounds, you should maintain the decision and inform applicant and sponsor. A suitable amendment to the original wording of the refusal should be made. If an explanatory statement has already been despatched then a short addendum should be forwarded to the Appeals Processing Centre for onward transmission.
Tribunal decisions
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 and ECOs 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 have been overtaken 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’ i.e. 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.
13.12 - Intention to live together; residence after arrival in the UKInternet relationships
It would not be sufficient for a relationship developed over the Internet to meet the requirement of the Rules unless the relationship included a personal face-to-face meeting between the couple concerned.
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 thereafter.
In assessing this part of the Rules it will be useful, if possible, to have the views of both parties tested by the ECO. You should try to assess what the basic object of the marriage is (or will be). 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.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 United Kingdom. In other words, a conditional intention to live together could be sufficient to meet the requirements of sub-paragraph (iv).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, you will need to examine the reasons for this and how this bears on the relationship between the parties.
Residence after arrival in the United Kingdom
A couple should have discussed and come to an understanding about where they are going to live, if only in the short term. If they say that the subject has not been discussed, you should try to find out whythis is so.
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.
13.13 - Unmarried partners and how they qualify (Rules paragraph 295A)If the marriage is/was conditional upon the applicant securing admission to the United Kingdom, you should establish who made the condition and why. You should also ask whether, if the application for entry clearance is unsuccessful, the sponsor will live with the applicant in his/her present country of residence (or elsewhere).
The Rules allow for persons who are unmarried to join a partner who is settled there provided certain conditions are met. The Rules 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 (paras 128-193), businessmen, self-employed, investors, writers, composers, artists (paras 200-239), retired persons of independent means (paras 263-270) and EEA nationals.
The requirements are as follows:
the applicant is the unmarried partner (i.e. not married to the sponsor) of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and,
any previous marriage (or similar relationship) by either partner has permanently broken down; and,
there will be adequate accomodation for the parties and any dependants without recourse to public funds in accomodation which they own or occupy exclusively; and,
the parties have been living together in a relationship akin to marriage which has subsisted for 2 years or more; and,
the parties will be able to maintain themselves and any dependants adquately without recourse to public funds; and,
the parties intend to live together permanently.
Posts should be conscious that some individuals might be reticent about applying under this section of the Rules. These and other settlement applications should be handled sensitively and with discretion.
However, if Posts receive entry clearance applications in respect of common-law relationships where there are children and/or the relationship may be less than 2 year’s duration, such applications may be referred to NCC5 for consideration outside the Rules where compelling compassionate circumstances exist. Full supporting details should accompany such referrals.
The following gives detail on the terminology and required levels of documentation for the guidance of ECOs considering applications.
Previous marriage or similar relationship has permanently broken down
Each of the parties to the unmarried partnership is required to provide evidence regarding any previous marital or other relationship akin to marriage they have had. They should be asked to specify how long ago the previous relationship was terminated, either by divorce or by separation.
The parties having been living together in a relationship akin to marriage which has subsisted for two years or more
"Living together", should be applied fairly tightly, in that we would expect a couple to show evidence of cohabitation in the preceding 2 year period. Periods apart would be acceptable for good reasons, such as work commitments, or looking after a relative which takes one partner away for up to 6 months where it was not possible for the other partner to accompany and it can be seen that the relationship continued throughout that period by visits, letters etc. Where a couple have been living together for the preceding 2-year period but have been dividing their time between countries and may, for example, have used the "visitor" category, then this will be sufficient to meet the requirement.
"Akin to marriage", is a relationship that is similar in its nature to a marriage which would include both common law and same sex relationships.
In order to demonstrate a 2-year relationship evidence of cohabitation will be needed. In order to show a relationship akin to marriage, ECOs should look for evidence of a committed relationship. The following types of evidence would be useful in this respect:
joint commitments, (such as joint bank accounts, investments, rent agreements, mortgage, death benefit etc);
if there are children of the relationship, a record of their birth entry
correspondence which links them to the same address;
any official records of their address (e.g. Doctors records, DSS record, national insurance record etc);
any other evidence that adequately demonstrates their commitment to each other
It will not be necessary to provide all of the above: ECOs are looking for satisfactory evidence of relationship.
Appeals
Unmarried partner settlement refusals attract the right of appeal. (Third country common-law spouses of EEA nationals have no right of appeal under the 2000 EEA Regulations).
Unmarried partners of UK accredited diplomats
See Chapter 5.
13.14 - Entry clearance endorsements
Entry clearances issued to a fiancé(e) should be endorsed ‘D: MARRIAGE’. LTE 6 MONTHS CODE 3
Entry clearances issued to a spouse should be endorsed ‘D: HUSBAND’ or ‘WIFE’ (as appropriate). The full name and date of birth of the UK sponsor should be written underneath the vignette or on an adjacent page. LTE 24 MONTHS CODE 1.
Entry clearances issued to a partner should be endorsed: ‘D, ACCOMPANYING/TO JOIN PARTNER [ADD INITIAL AND SURNAME ONLY OF PARTNER].’ LTE 2 YEARS CODE 1.
Endorsements should not be prefixed ‘SETTLEMENT’
13.15 - Interviewing
If the sponsor accompanies the applicant, they should always be interviewed separately, (although see below)
Treating the applicant fairly
You should be careful and courteous while interviewing an applicant or sponsor.
Some "dos" and "don’ts" for conducting balanced interviews:
