- How to make an application
- The requirements
- Applications for indefinite leave to remain
Spouses and partners of British citizens or people settled in the UK can apply for a visa to join or remain with their loved ones. These applications are dealt with by the Home Office under the Immigration Rules.
The rules are not easy reading. Paragraphs are not numbered but labelled with acronyms, rules refer to other rules in different sections and the construction of sentences and paragraphs do not always seem to make sense.
With this post, we hope to bring some clarity to the requirements to be met in partner visa applications.
Trying to explain all the elements of a successful partner visa application in one article is tricky because there are different types of application:
- Someone who doesn’t live in the UK will apply for “leave to enter”
- Someone who already lives in the UK will apply for “leave to remain”
- Someone who has had a partner visa for five (or in some cases, ten) years will apply for “indefinite leave to remain”, meaning they can settle permanently
Generally the visa requirements are similar for these different types of application. Sometimes they are slightly different, so we’ll highlight that as we go along.
We have also separated out the financial requirements, and applications that rely on “exceptional circumstances”, and covered them in separate blog posts. That is only because this post would be very long if we tried to cover everything all in one go.
How to make an application
Before we get to what you need to actually cover in the application, it’s worth being aware of the technicalities involved. To apply under Appendix FM it is essential to submit a “valid application”. Confusingly, what makes an application valid is not in Appendix FM itself, but covered in Part 1 of the Immigration Rules at paragraph 34.
The correct application form must be used, in its most recently published version. The right application fee has to be paid and an original valid form of ID submitted. Applications also require payment of the NHS surcharge, currently set at £200 per annum, unless applying for indefinite leave to remain.
The correct application form will depend on the case. Applications from abroad must be filed online, but it is also necessary to print and complete Appendix 2, which covers the financial requirements. For UK applicants, the most appropriate form is FLR(M) for leave to remain, and SET(M) for indefinite leave to remain. There are online versions of both of these forms.
A successful application under Appendix FM will generally result in a grant of leave to enter for 33 months or leave to remain for 30 months. During that time the person is allowed to work but cannot access public funds — that is, they cannot claim benefits — unless they request an exception due to destitution.
The applicant can apply for indefinite leave to remain (ILR) after five years. The exception is where an application is granted on the basis of exceptional circumstances, in which case the application would need to wait ten years before applying for ILR. We don’t cover exceptional circumstances in this post, but will do in a future one.
In order to succeed, an applicant must meet certain requirements. These are divided into what the Home Office calls “suitability criteria” and “eligibility criteria”.
Suitability criteria look at the applicant’s character to assess if there are reasons why they should not be admitted to or allowed to remain in the UK.
There are mandatory and discretionary grounds to refuse applications for suitability reasons. Mandatory grounds mean that Home Office officials must reject the visa application for this reason. Discretionary grounds mean that they ”will normally” or “may” reject the application but may choose not to. In some instances it is very likely that they will, in others less so.
Mandatory grounds for refusal
Paragraphs S-EC.1.1 to S-EC1.9 and paragraphs S-LTR.1.2. to 1.8 of Appendix FM list the reasons why an application for leave to enter or remain must be refused (mandatory grounds). You find these by going to Appendix FM online and clicking the drop-down option for “Family life with a partner”.
Before applying it is crucial to look at this list.
The main reasons why an application will be refused concern criminality, such as being the subject of a deportation order, or having been convicted of an offence and sentenced to a period of imprisonment of at least four years.
In case of sentences between one and four years, the application will be refused unless a period of ten years has passed from the end of the sentence. For sentences of less than 12 months, the person will need to wait for five years before applying.
Even in the absence of any conviction, there are circumstances that will lead to a refusal if the Home Office is satisfied that the exclusion of the applicant is “conducive to the public good”. This wording is in paragraph S-EC1.5, which says that an example of what is not conducive to the public good is where the applicant’s
character, associations, or other reasons, make it undesirable to grant them entry clearance.
This ground was introduced with suspected terrorists in mind. But the wording is very wide and potentially catches a variety of situations. This is bad news for applicants. For example, the Home Office can refuse an application simply because the applicant has a pending prosecution, or has not paid taxes to HMRC.
Other mandatory grounds not linked to criminal offences are the refusal to attend an interview if asked, or provide information and medical reports.
Finally, an application will be refused if it is considered that the applicant’s parent or partner poses a risk to the applicant, for example in the case of convictions against a child of sexual offences.
Applications for leave to remain will be refused for similar reasons, with the addition of grounds specific to applicants that have been excluded from the Refugee Convention or from Humanitarian Protection. If you don’t know what this means, it is unlikely to apply to your situation.
Discretionary grounds for refusal
Paragraphs S-EC.2.1. to 3.2 and paragraphs S-LTR.2.1. to 4.5 of Appendix FM list the reasons why an application for leave to enter or remain should normally be refused (discretionary grounds).
Some of the reasons have to do with the application itself. Failure to disclose material information (i.e. giving incorrect details in the application form) or the production of false documents will normally lead to a refusal (even if the applicant was not aware of the deception).
If the Home Office considers it conducive to the public good, the applicant can also be refused in cases of criminal offences where:
- there was no prison sentence
- there was an out-of-court settlement
- the Home Office thinks that the offence caused “serious harm”, or
- “the person is a persistent offender who shows a particular disregard for the law”
Finally, two grounds that seem to be widely used. One is that the applicant may be refused if he has failed to pay litigation costs — legal costs — awarded to the Home Office. The other is if, quoting S-EC.2.3:
one or more relevant NHS bodies has notified the Secretary of State that the applicant has failed to pay charges in accordance with the relevant NHS regulations on charges to overseas visitors and the outstanding charges have a total value of at least £500.
You can read a real-world example of how this NHS debt ground was used to refuse a visa application in one case: How the Home Office used the NHS to refuse my client a visa.
As a lawyer preparing an application, it is therefore essential to consider whether the applicant would fall foul of these two requirements, which are often overlooked because they may not be as obvious to spot as a criminal offence.
In relation to leave to remain applications, the grounds under which an application “will normally be refused” also include lack of cooperation with an investigation of their proposed marriage or civil partnership. Grounds that “may” lead to a refusal include false representations or failure to disclose any material fact in a previous application for leave to enter or remain. Failure to pay litigation costs or NHS debts may again result in a refusal.
Mandatory and discretionary grounds for refusal in settlement applications are very similar, and can be found in paragraphs S.ILR.1.2 to S.ILR.4.5.
The main difference is the time that must have lapsed since a previous conviction before the application can be made:
- 15 years for convictions between one and four years imprisonment
- seven years for less than 12 months imprisonment
- two years for a non-custodial sentence or out of court disposal
To be granted entry clearance as a partner, all of the requirements in paragraphs E-ECP.2.1. to 4.2. of Appendix FM must be met.
The eligibility requirements concern the relationship between the applicant and the sponsor, maintenance and accommodation requirements and knowledge of the English language. Applicants from countries listed in Appendix T must also undertake a tuberculosis screening.
Maintenance and accommodation requirements
Because these can be so tricky in themselves, we discuss these in a separate post: What are the financial requirements for UK spouse and partner visas?
The applicant’s partner, i.e. the sponsor, must be British or settled in the UK, or have limited refugee or humanitarian protection leave. (Refugees might be able to bring some family members into the UK using the “family reunion” rules, instead of Appendix FM.)
Both the applicant and the sponsor must be 18 or over at the date of the application and must not be within the “prohibited degree of relationship”. This means that they cannot be closely related to each other in such a way that it would be against the UK law to marry (for example, brother and sister).
Additional requirements are that the parties must have met in person and have a genuine and subsisting relationship, and intend to live together permanently in the UK.
If the parties are married or in a civil partnership, their marriage or partnership must be valid and any previous relationship must have broken down permanently. Fiancées must be seeking entry to marry.
In extension and indefinite leave applications the relationship requirements are the same, but the applicant must also provide evidence that, since entry clearance or leave to remain as a partner was granted, they have lived together in the UK with the sponsor.
If there is a period in which they have not done so, they should give a good reason for it, consistent with a continuing intention to live together permanently in the UK. This means that long absences must be explained and it has to be shown that the couple still intends to maintain their family home in the UK.
Applicants who wish to extend their leave must also satisfy the immigration status requirements. This means that the applicant must not be in the UK as a visitor or with leave granted for six months or less (unless it was fiancée leave) and they must not be on immigration bail.
This requirement creates a difficult situation for visitors, who cannot apply in-country unless they commit the criminal offence of overstaying after their visa expires. In other words, if you are in the UK on a visit visa, you cannot hang around and apply to stay legally using Appendix FM — you would need to leave and apply from your home country. It might be helpful to use an example here.
English language requirements
Knowledge of the English language must be demonstrated in applications for leave to enter or remain.
One way to do this is to provide “specified evidence” that the applicant is a citizen of a majority English-speaking country (their passport would suffice). A list of qualifying countries is in paragraph GEN.1.6 of Appendix FM (note that it does not include Canada).
In entry clearance cases, applicants from other countries must have passed an English language test in speaking and listening at Level A1 or above of the Common European Framework of Reference for Languages.
The test is valid only if it was taken with a provider approved by the Home Office. Lists of such providers are regularly updated so it is important to check that the institute is still on the list when submitting the application.
Level A1 is the minimum level required, so nothing stops an applicant from taking a higher test.
Applicants who have an academic qualification at bachelor’s degree level or above are exempted from taking the test if the certificate was awarded in the UK, or if it was taught or researched in English and is deemed acceptable by an organisation called UK NARIC.
The only people exempt from the English language requirements are those over 65, those with a disability or in cases of exceptional circumstances.
For extension of leave applications, applicants must prove that their English has improved, by providing a certificate at level A2.
Indefinite leave applications require level B1 in speaking and listening, and the Life in the UK test.
Evidence of knowledge of English must be submitted in the form of original certificates.
Applications for indefinite leave to remain
Extra points to consider
As mentioned, it is possible to apply for settlement upon completion of 60 months (five years) of leave accrued under Appendix FM, using form SET(M). Applicants relying on exceptional circumstances, not covered in this blog post, will need to wait for 120 months (ten years). A few extra points to consider in these applications:
- Any leave granted as a fiancée or proposed civil partner would not count
- It is not possible to mix-and-match partners. Any leave granted on the basis of a previous partner cannot be added to the current leave for the purpose of accruing the relevant five or ten year period.
- It is essential to ensure that there are no excessive absences to prove the intention to permanently live in the UK.
Bereaved partners and victims of domestic violence
Appendix FM allows for two situations when applicants can apply for ILR even if they have not yet completed their five or ten years residence in the UK:
- if the sponsor dies while the applicant has not yet completed the relevant five- or ten-year period. Bereaved partners will be granted ILR unless they fall foul of paragraphs S.ILR1.5 and 1.6 (insufficient time has lapsed since the applicant was sentenced to up to four years’ imprisonment), in which case limited leave to remain will be granted and the applicant will be able to apply for ILR in due course.
- Victims of domestic violence can also apply for ILR if their relationship breaks down before the end of the relevant period. The applicant must provide evidence that during the last period of limited leave as a partner of a British citizen or a person settled in the UK, under Appendix FM the applicant’s relationship with their partner broke down permanently as a result of domestic violence.