This relates to Spouse Visa UK 2018 and covers the details of entry clearance requirements for spouse visa under the 5-year partner route from outside the UK. Accordingly, the post tries to explain the various facets pertaining to spouse/partner visa viz. conditions of stay, suitability and general grounds for refusal, financial, adequate maintenance and accommodation, and English Language requirements and also spouse visa refusal appeal or reapply
Here it is important to understand spouse/partner visa is granted on the basis of an applicant’s relationship with a UK sponsor/partner. The situation gets complex when objective criteria such as an evidence of marriage/civil partnership do not corroborate with subjective criteria such as intentions to live together permanently. Therefore, establishing a relationship between the applicant and the UK sponsor/partner is critical to the success of the application. The post provides the details of the relationship requirements such as status of UK partner, min age, prohibited degree of relationship, meaning of acquaintance, met in person, genuine and subsisting relationship, valid marriage or civil partnership, intentions of fiancé(e) or proposed civil partner, permanent break down of previous relationship and intentions to live together permanently.
Entry Clearance Requirements for Spouse
The entry clearance requirements for spouse visa as per paragraph EC-P.1.1. of Appendix FM are as under:
- the applicant must be outside the United Kingdom;
- the applicant must have made a valid application for entry clearance as a partner/spouse;
- the applicant must not fall for refusal under any of the grounds in Section S-EC: Suitability–entry clearance; and
- the applicant must meet all of the requirements of Section E-ECP: Eligibility for entry clearance as a partner. These are:
- E-ECP.2.1. to E-ECP.2.10.: Relationship requirements;
- E-ECP.3.1. to E-ECP.3.4.: Financial requirements; and
- E-ECP.4.1. to E-ECP.4.2.: English language requirement.
For settlement as a spouse/partner, an applicant is required to meet all the relevant suitability as well as eligibility requirements at every application stage i.e. entry clearance, leave to remain and indefinite leave to remain (settlement). Under Appendix FM, limited leave is granted in periods of 30 months (33 months for entry clearance to allow time for travel to be arranged) generally subject to a condition of no recourse to public funds.
Conditions of Stay in the UK
The visa does not allow any social benefits, housing assistance through public funds and any tax credits. However, the holder of spouse visa is entitled to do work in the UK, which is an advantage over 6-month fiancé(e) visa that does not allow applicants to work in the UK.
Immigration Rules Appendix FM
Section D-ECP: …….an applicant who meets the requirements for entry clearance as a partner (other than as a fiancé(e) or proposed civil partner) will be granted entry clearance for an initial period not exceeding 33 months, and subject to a condition of no recourse to public funds, and they will be eligible to apply for settlement after a continuous period of at least 60 months in the UK……….
The suitability grounds- S-EC 1.2-1.9, 2.2-2.5 & 3.1-3.2- cover a wide range of reasons for refusing an entry clearance application for spouse/partner visa.
An entry clearance application as a spouse/partner is refused if an applicant fails suitability on grounds stated in Section S-EC 1.2. to 1.9. such as:
- exclusion of an applicant from the UK is conducive to the public good because of conviction, character and association;
- the applicant is subject to a deportation order;
- failure to attend an interview, provide information and undergo a medical test;
- medical grounds;
- conditional caution;
- applicant’s parent or parent’s partner poses a risk to the applicant
In an applicant fails the suitability requirements under Section S-EC.2.2. to S-EC.2.5 then it is quite likely that the application will be refused. These suitability requirements relate to:
- false information, representations or documents and failure to disclose material facts;
- an inability to provide maintenance and accommodation undertaking;
- exclusion of the applicant from the UK is conducive to the public good because of a non-custodial sentence or other out of court disposal that is recorded in an applicant’s criminal record;
- the applicant has caused serious harm;
- the applicant is a persistent offender with a particular disregard for the law.
Moreover, an application may be refused on suitability grounds due to the failure of the applicant to pay litigation cost to the Home Office (S-EC.3.1.) and NHS dues in excess of £500 (S-EC.3.2.).
For more details on the suitability grounds please refer common reasons for UK spouse visa refusal.
General Grounds for Refusal
Although, applicants applying as a partner/spouse under Appendix FM are not subject to the General Grounds for Refusal; however, the provisions in paragraph 320(3), (10) and (11) applies to applications under Appendix FM.
If any of the aforesaid General Grounds apply then the application for entry clearance as a partner/spouse of a UK Sponsor is refused.
To qualify for entry clearance as a partner on the 5-year route to settlement an applicant is required to meet the financial requirements as per paragraphs E-ECP.3.1. to E-ECP.3.3 and specified evidence as per Appendix FM-SE.
Exemption from Min Income Threshold and Adequate Maintenance
Applicants who are exempt from the minimum income threshold under the financial requirement in Appendix FM (because their partner is in receipt of a specified benefit or allowance) must instead demonstrate that their partner is able to maintain themselves, the applicant and any dependants “adequately” without recourse to public funds. The specified evidence is required to be provided as set out in Appendix FM-SE.
Copies of all documentary evidence submitted are retained on file, in chronological order.
To qualify for entry clearance as a partner on the 5-year route to settlement an applicant is required to meet the accommodation requirement as per Paragraph E-ECP.3.4. of Appendix FM.
The applicant must provide evidence that there will be adequate accommodation, without recourse to public funds, for the family (including other family members who are not included in the application but who live in the same household), which the family own or occupy exclusively.
Accommodation is not be regarded as adequate if:
- it is, or will be, overcrowded; or
- it contravenes public health regulations.
For further guidance on the accommodation requirement please refer Spouse Visa Accommodation Requirements
To qualify for entry clearance as a partner on the 5-year route to settlement the applicant must meet the English language requirement in accordance with Paragraph E-ECP.4.1. to E-ECP.4.2. of Appendix FM. For further details please refer our post on Spouse Visa English Requirement
To qualify for entry clearance as a partner the applicant must meet the relationship requirements stated in Paragraphs E-ECP.2.1. to E-ECP.2.10. of Appendix FM to the Immigration Rules.
Status of UK Partner
The UK partner could either be a British Citizen or present and settled in the UK. Moreover, the UK partner could be a refugee in the UK or a person with humanitarian protection.
The paragraph GEN.1.3.(c) refers to a British Citizen in the UK also include a British Citizen who is coming to the United Kingdom with the applicant as a partner.
The paragraph GEN.1.3.(b) refers to a person being present and settled in the UK also include a person who is being admitted for settlement on the same occasion as the applicant.
E-ECP.2.1. The applicant’s partner must be-
(a) a British Citizen in the UK, subject to paragraph GEN.1.3.(c); or
(b) present and settled in the UK, subject to paragraph GEN.1.3.(b); or
(c) in the UK with refugee leave or with humanitarian protection.
The applicant, as well as the UK partner, must be 18 years or more at the time of application.
E-ECP.2.2. The applicant must be aged 18 or over at the date of application.
E-ECP.2.3. The partner must be aged 18 or over at the date of application.
Prohibited Degree of Relationship
The applicant and UK partner must NOT be within the prohibited degree of relationship. According to Marriage Act 1949, the prohibited degrees for men are Mother, Sister, Father’s mother, Daughter, Daughter’s daughter, Mother’s mother, Son’s daughter, Mother’s sister, Father’s sister, Sister’s daughter and Brother’s daughter. And the prohibited degrees for a woman are Son, Father, Mother’s father, Father’s father, Daughter’s son, Son’s son, Father’s brother, Brother, Mother’s brother, Sister’s son, Brother’s son.
Moreover, the Marriage (Prohibited Degrees of Relationship) Act 1986 prohibits the following relationships, up until both parties are aged 21 and over, and provided that the younger party has not at any time, before attaining the age of 18, been a child of the family in relation to the other party: Son of former husband, Daughter of former wife, Former husband of mother, Former wife of father, Former husband of father’s mother, Former wife of father’s father, Former husband of mother’s mother, Former wife of mother’s father, Son of son of former husband, Daughter of son of former wife, Son of daughter of former husband and Daughter of daughter of former wife.
The Marriage (Prohibited Degrees of Relationship) Act 1986 also prohibits marriages- until the death of other relations– between the following:
- Father of former husband, until the death of former husband and his mother;
- Mother of former wife, until the death of former wife and her father;
- Former husband of daughter, until the death of the daughter and the father of the daughter;
- The former wife of son, until the death of the son and the mother of the son.
E-ECP.2.4. The applicant and their partner must not be within the prohibited degree of relationship.
Couple to Have Met in Person
In terms of E-ECP.2.5, the applicant and UK partner must have met in person. Where the immigration officer is not satisfied that the couple has met in person, the application is refused. Before reaching a decision, all aspects of the case are considered as well as the requirement to have met in person. If there are other grounds for refusal, these should also be included in the refusal notice, although not having met in person can be the sole ground for refusal.
To have met” has been interpreted by the Tribunal as “to have made the acquaintance of” which means that, provided the parties have made the acquaintance of each other, that acquaintance need not be in the context of marriage or civil partnership. This means for example that if the parties had been childhood friends, it could be acceptable, although the meeting of two infants would not. A mutual sighting or mere coming face-to-face followed by telephone or written contact would not suffice. The Tribunal has decided that “met” implies a face-to-face meeting itself resulting in the making of a mutual acquaintance.
E-ECP.2.5. The applicant and their partner must have met in person.
Genuine and Subsisting Relationship
The paragraph E-ECP.2.6. relates to the genuine and subsisting relationship between the applicant and his/her UK sponsor/partner.
An applicant applying as an unmarried partner or same-sex partner must have been living together with his/her partner in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application and must provide documentary evidence of this.
To prove that the relationship is genuine and subsisting, an applicant may provide some reasonable evidence of communication with the UK partner. For instance, chat details on social media such as WhatsApp, Facebook, Snapchat etc.
However, if due to religious and cultural element there the evidence of relationship is not meaningful then it is not an impending problem as Immigration Officers are well grounded to take specific cultural and religious values whilst assessing a spouse visa application. norms. Moreover, an applicant may include an undertaking of a Third Party such as a close family member or friend. It is recommended to include the copy of the passport of the person giving the affidavit in the application package.
Here it is pertinent to point out that a genuine and subsisting relationship is usually associated with a combination of the following factors:
The applicant is in a current and long-term relationship with the UK sponsor and can provide evidence to this end.
Evidence of Cohabitation
The applicant is cohabiting with the UK partner/spouse and is able to provide a satisfactory documentary evidence.
The applicant has biological children together with the UK partner/spouse and shared responsibility for them (and also for any adopted or step-children).
Joint Financial Responsibilities
The applicant shares financial responsibilities such as paying for mortgages, utility bills or tenancy, operating a joint bank account with the UK partner/spouse.
Visiting Other’s Home Country and Family
The applicant or the partner has travelled to other’s home country and met with family members and can provide evidence of this.
Here it is important to note that the fact that an applicant has never visited the United Kingdom is not regarded as a negative factor, but as stated above, it is a requirement of the Immigration Rules that the couple has met in person.
The couple, or their families acting on their behalf, have made definite plans concerning the practicalities of the couple living together in the United Kingdom. In the case of an arranged marriage, the couple both consent to the marriage and agree with the plans made by their families.
E-ECP.2.6. The relationship between the applicant and their partner must be genuine and subsisting.
A Valid Marriage or Civil Partnership
When assessing whether an applicant claiming to be married or in a civil partnership meets the requirements of paragraph E-ECP.2.7. the immigration officer needs to be satisfied that the applicant and partner have a valid marriage or civil partnership.
To provide that the marriage or civil partnership is valid, applicants can provide the original certificate of marriage or civil partnership certificate. A certificate of is valid if it is legal in the country where the marriage or civil partnership took place. If the marriage certificate is not in English/Welsh then it should be translated and attested. For instance, Nikah Nama in Pakistan is in Urdu, so it should be translated into English. Moreover, the Original Nikah Nama should be stamped with the registration of the Union Council.
E-ECP.2.7. If the applicant and partner are married or in a civil partnership it must be a valid marriage or civil partnership, as specified.
The applicant and partner must provide evidence that the marriage or civil partnership is valid in the UK. The required evidence of marriage or civil partnership is specified in paragraphs 22 to 26 of Appendix FM-SE.
Where the applicant and partner have been married in the UK, the marriage must be evidenced by a certificate recognised under the laws of England and Wales, Scotland or Northern Ireland.
Where the applicant and partner have entered into a civil partnership in the UK, the civil partnership must be evidenced by a civil partnership certificate.
To know whether or not a couple has a valid marriage or civil partnership, please refer the details: Recognition of Marriage and Divorce and Eligibility, Registration, Dissolution of Civil Partnerships.
Intentions of Fiancé(e) or Proposed Civil Partner
The Paragraph E-ECP.2.8. is not applicable to spouse visa application. During the assessment process, whilst considering paragraph E-ECP.2.8., the immigration officer is required to be satisfied that an applicant for entry clearance as a fiancé(e) or proposed civil partner is coming to the United Kingdom to enable the marriage or civil partnership to take place.
E-ECP.2.8. If the applicant is a fiancé(e) or proposed civil partner they must be seeking entry to the UK to enable their marriage or civil partnership to take place.
The Previous Relationship Has Broken Down Permanently
When considering paragraph E-ECP.2.9.(i) the ECO is required to be satisfied that any previous relationship of the applicant or his/her partner has broken down permanently, unless it is a marriage or civil partnership which falls within paragraph 278(i) of the Rules.
When considering paragraph E-ECP.2.9.(ii), the ECO must be satisfied that neither the applicant nor their partner is married to, or in a civil partnership with, another person at the date of an application for entry clearance as a fiancé(e) or proposed civil partner under Appendix FM.
E-ECP.2.9. (i) Any previous relationship of the applicant or their partner must have broken down permanently, unless it is a relationship which falls within paragraph 278(i) of these Rules; and
(ii) If the applicant is a fiancé(e) or proposed civil partner, neither the applicant nor their partner can be married to, or in a civil partnership with, another person at the date of application.
Where the applicant and/or their partner has previously been married or in a civil partnership, the applicant must provide evidence as specified in paragraphs 23 and 25 to 26 of Appendix FM-SE that the previous marriage or civil partnership has ended.
Applications are required to provide conclusive evidence to show that the previous marriage or civil relationships have permanently broken down due to divorce, separation or death of the spouse/civil partner.
- If the applicant has married, they must provide an original divorce or death certificate;
- If the applicant has entered into a civil partnership, a dissolution certificate must be provided;
- If the above documents are not in English, they must be translated. They must also be original documents.
Legally Dissolved Mariage or Civil Partnership
Where the marriage or civil partnership of the applicant or their sponsor to a previous partner has not been legally dissolved, the applicant may still be able to qualify under Appendix FM as an unmarried partner or same-sex partner, provided that they meet the criteria set out in paragraph GEN.1.2. and they provide evidence that the new relationship is genuine and subsisting and that the previous relationship has broken down permanently.
Intentions to Live Together Permanently
The applicant and UK partner must intend to live together permanently in the UK. When considering paragraph E-ECP.2.10. the immigration officer must be satisfied that the applicant and their partner intend to live together permanently in the UK.
Under paragraph 6 of the Immigration Rules “intention to live together permanently with the other” or “intend to live together permanently” 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.
Accordingly, an applicant and his/here UK partner/sponsor must intend to live together permanently in the UK and each case/application is judged on its merits.
E-ECP.2.10. The applicant and partner must intend to live together permanently in the UK.
Unmarried Partner Living together for 2 Years
If the applicant is applying as an unmarried partner, he/she will need to provide evidence that the applicant & unmarried UK partner have been living together for 2 years prior to the application.
Such evidence can include documents showing joint commitments, such as joint bank accountants, joint investments, joint tenancy agreement, joint mortgage account etc.
Letters of correspondence should also be included in the application. A letter of correspondence is a letter that contains the address that the applicant and UK partner have lived together in, such as household bills and doctors or dentist records.
If an application is lacking in letters of correspondences, applicants can obtain statements from a third party (letters from friends & family, doctors, dentists etc) specifically saying that they have been living together with their partner for more than 2 years.
UK Spouse Visa Refusal Appeal or Reapply
If an applicant fulfils the aforesaid criteria then a spouse or civil partner visa is granted for an initial period up to 33 months. In case the visa is refused then a refusal letter is issued with a full right of appeal, and depending on the nature of a refusal an applicant may opt for either an appeal to challenge the refusal decision or reapplication in consultation with a spouse visa specialist solicitor or a legal adviser. As a general practice, it is advisable and expedient to exercise the right of appeal whenever and wherever it is granted. The spouse visa appeal processing time is usually 6-8 months.
Spouse Visa Refused- Appeal or Reapply?
I am a British born citizen and my husband is Indian and we applied for the spouse visa on the 27th May 2017, which was refused 14th September based on financial income
1. They wanted a letter 28 days prior to the application from one of my employers confirming my job. But I gave them my entire contract signed and dated
2. I had a interview phone call which I pretty much messed up to be honest and this is the main reason why they refused it. I have two jobs, one full time and one part time, which gives me an income of 22k after tax. They rang asking information about my part time job.
I work for a very small company and my hours are flexible and because most of the work is done online I usually hot desk too. I’m really good friends with everyone I work with and so I guess the environment is pretty laid back and were like a family almost. I made a mistake with my income. She asked me how much I get paid and instead of saying £791, I said £719 because I just quickly glanced at it. They further went onto call my manager, I told him he was expecting a call and made the same mistake of telling him £719 instead.
So basically I’m screwed because of two numbers
My solicitor has asked the home office to see if the phone call was recorded or not. The question is, is it worth appealing? Or shall we just reapply all over again
Any sort of advice would be helpful
There is a good chance to successfully appeal against the aforesaid refusal decision as new evidence can be furnished in an appeal. Moreover, the transposition error i.e. 719 instead of 791 can be easily explained in the appeal- as a matter of fact, it is not a big deal. Here it is important to understand that it is expedient to follow the legal process i.e. if the immigration laws allow filing an appeal then there is some good logic and consideration to it.