How do the rules differ between settlement for spouses and unmarried couples?
The standard rules for coming to join a spouse consist of a present and settled sponsor, that the parties have met, adequacy of maintenance and accommodation, intention to live together permanently and evidence of a ‘subsisting’marriage. Clearly these may not necessarily even be considered if the couple in question are not married, for whatever reason, as the law could refuse to ratify such a relationship. Nonetheless, there are also human rights issues involved in potentially denying family life to an applicant.
Between 1985 and October 2000, there were no stable provisions within the rules for unmarried couples; in this period they were considered only under concessions. Until April 2003, unmarried couples were required to show some legal obstacle to their marriage but this is no longer the case. Further, by changing the probationary period for married couples to two years the gap between spouse settlements and those of unmarried couples has closed even further. In case law from 1979, in terms of the right to family life under article 8, it was found that in relation to the status of children there should be no discrimination between married and unmarried parents.
What do unmarried couples need to demonstrate to entry clearance officers?
The following rules apply to both same sex couples and couples of different sex. They must show:
that any previous marriage or comparable relationship has broken down
that they have lived together for two years before applying for entry
that they are not so closely related that the law would prevent their marriage
requirements for married partners as above such as the present and settled sponsor; accommodation and maintenance.
To clarify, the definition of cohabitation does not include simply visiting but the period of living together does not need to be in just one country (indeed it is likely not to if one half of the couple is settled in the UK and the other overseas). The couple could have been living alternatively at each other’s separate homes; there is no necessity for a joint mortgage or ownership or property.
Concessions are made for short breaks (up to 6 months) within the two year period of cohabitation. Reasons for such a break could include work commitments or caring for a relative, for instance. The couple must then show, though, that the relationship continued throughout this ‘break’ period.
After they have lived together for a total of four years (two years before entry and a probationary period as with married couples), the partner who is the applicant would be able to gain immediate settlement, comparable to that of a spouse.
What are the settlement rules for fiance(e)s? Is there a time frame set out by the Home Office for marriage to take place?
Entry clearance as a fiance(e) can be applied for in the instance of an individual who is not yet married but engaged to be married to a settled sponsor, as set out in paragraph 290 of the immigration rules. The rules are comparable to those of the spouse settlement conditions apart from the reference to the obvious lack of a subsisting,valid marriage. In place of this, the fiance(e) is required to provide evidence that he/she is seeking entry clearance for leave with the intention of marriage or civil partnership with a settled person.
In the event of a successful application to enter as a fiance(e), the couple then have a period of six months’ leave during which the marriage ceremony must take place. This leave is conditional on the fiance(e) agreeing not to work during this time (according to paragraph 291), or have any recourse to public funds (i.e. benefits, job seeker’s allowance or tax credits).
In the event of the marriage ceremony not taking place in this first six months then, according to paragraph 294, the Home Office may see fit to grant a further extension to the fiance(e)’s leave ‘for an appropriate period’. This period is in order to allow the marriage to take place, if there has been some reasonable explanation as to the cause of the initial delay. In order to grant an extension, the couple must show evidence that the marriage will take place at an early date within the extension period and also, according to paragraph 293, they must demonstrate that they continue to meet all other requirements and conditions for leave (such as the no employment rule).
What happens if the marriage ceremony takes place after the fiancée application for entry but before the entry clearance officer’s decision?
In all immigration matters, the waiting time between an application for entry clearance or leave to remain and notification of the immigration decision can be lengthy and things can change. In the case of a fiance(e) application, if the intention is to marry at an early date then of course sometimes the ceremony takes place before an immigration decision is made. If this happens, the applicant overseas should inform the entry clearance officer as soon as possible and the application type will be amended to reflect this. It will proceed then as a married partner application for settlement.
There could be a situation in which a fiance(e)’s application is refused and there is an appeal pending in the system. If a marriage takes place at this juncture, the status of the proceedings relating to the appeal dictates how the Home Office and an Immigration Judge will treat this. For instance, if notice of a past or upcoming marriage ceremony is included in the grounds of appeal then this will be reviewed by the entry clearance officer. The ECO may choose not to uphold his/her original decision as such notice goes to the couple’s intention to marry. One potential outcome is to treat this as a fresh application for a spouse settlement.