The Court of Appeals held on Wednesday 23.05.07 that provisions of the Asylum and Immigration act 2004 in relation to Sham marriage are incompatible with the ECHR. For the full judgement click here http://www.bailii.org/ew/cases/EWCA/Civ/2007/478.html

Spouses of UK immigrants may need English language test

Certificate of Approval , Home Office

Marriage
Anyone can apply for Further Leave to Remain on the basis of marriage to the following:

-A British citizen who is present and settled in the UK
-Someone with Indefinite Leave to Remain
-Someone with limited leave to remain

The marriage application will be considered by the Immigration and Nationality Directorate (IND) provided you have leave to remain in the UK. When the application is submitted, state what happens when leave is granted. Where your visa has expired before you submit the application or you have the Immigration and Nationality Directorate (IND) policy known as DP3/96 will affect the consideration of the application.

Length of Visa

( 2 years probationary period) 2 years ,Allows you to work without restriction and to exit and re-enter the UK multiple times for a 2 years period.

3.2 If the foreign spouse is not yet in the UK, the application for leave (or permission) to enter the UK as a spouse/civil partner/partner of a UK citizen or a person settled in the UK can be made to the British embassy, consulate or high commission in the country in which s/he is living. A fee of approximately £260 is charged for a spouse/civil partner/partner application, whether or not it is successful.

3.3 The Entry Clearance Officer who considers the application for a visa will have to be satisfied that the couple intend to live together permanently and that they can maintain and accommodate themselves without ‘additional recourse to public funds’. This means that the applicants will have to show that they have enough money and adequate housing for themselves, without claiming any social security benefits for the non UK spouse/civil partner/partner. There are certain exceptions to this rule and further specialist advice should be sought. Any benefit claim for the settled or UK spouse/civil partner/partner and/or their children is not affected by this restriction on the foreign spouse.

3.4 Applications can only be made for leave to remain as a spouse/civil partner/partner from within the UK if the foreign spouse/partner is already here legally on a visa that is for more than six months. The only exception to this is people in the UK holding a six month fiancé(e) or proposed civil partner visa, who marry or form a civil partnership during this time (see paragraph 4 below).

3.5 A fee is payable for applications made from within the UK. The relevant form for applications made within the UK for leave to remain as a spouse/civil partner/partner is FLR(M), which can be obtained from the Home Office website: www.ind.homeoffice.gov.uk These forms are updated every six months and it is important to ensure that a valid form which has been correctly completed is submitted, otherwise the application will not even be considered by the Home Office. The documents required must be sent to the Home Office in original form along with the application form, ie photocopies are not accepted. We strongly advise that you keep copies of all documents and correspondence which you send to the Home Office and send any original documents by recorded or special delivery, keeping the docket to prove that they have been sent.

3.6 It is also very important that a valid application is submitted before the foreign spouse/civil partner/partner’s current leave to remain in the UK expires. If an application is submitted after a person’s leave to remain expires, even by one day, then that person becomes an ‘overstayer’. In most circumstances, an overstayer does not have a right of appeal against a negative decision and will have a poor immigration history which could result in the refusal of the present application as well as an application to enter the UK in the future.

3.7 During the two years of this visa, the foreign spouse/civil partner/partner is entitled to take employment but no social security benefits can be claimed for her/him (subject to the exceptions mentioned above, at 3.3).

3.8 Just before the expiry of the initial two years leave to remain as a spouse/civil partner/partner, an application can be made for indefinite leave to remain in the UK. The Home Office may check that the couple are still living as a couple. Once indefinite leave to remain is granted, the foreign spouse/civil partner/partner will be allowed to access social security benefits and, of course, will be allowed to continue to be employed.

3.9 Applications for indefinite leave to remain must be submitted in country (within the UK), on a valid completed form SET(M) (also available from the Home Office website - see paragraph 3.5 above), with the required fee and relevant original documents to the Home Office before the expiry of the initial two years leave to remain.

3.10 Couples who have been married, civil partners or cohabiting partners and living together abroad for more than four years can apply straightaway for indefinite leave to enter and then remain in the UK, without having to go through the probationary period, if one of them is a UK citizen, an Irish citizen or otherwise settled in the UK and they travel to the UK together.

Forced marriages

In Akaeke v. Secretary of State for the Home Department [2005] EWCA Civ 947, the claimant had married in February 1996, and applied for leave to remain on the basis of that marriage. She should have been required to return to Nigeria to make an out-of country application, but there had been delay of such length that the IAT had called it a "public disgrace".

Secretary of State for the Home Department v Baiai & Ors [2007] EWCA Civ 478 (23 May 2007)
http://www.bailii.org/ew/cases/EWCA/Civ/2007/478.htmlThe Court of Appeals for England and Wales ruled [judgment text] Wednesday that provisions of the Asylum and Immigration Act 2004 [text] are incompatible with the European Convention on Human Rights

Shala v SSHD [2003] EWCA Civ 233; [2003] INLR 349 Proportionality of requiring a spouse of a refugee to go abroad for entry clearance

Carpenter v SSHD [2003] QB 416, ECJ. European Community Treaty Article 49 prohibits denial of a right of residence to overstaying spouse of a self-employed British citizen who travels for business to other European Union countries.

Regina (Baiai and Others) v Secretary of State for the Home Department Regina (Baiai and Another) v Same (No 2)

Before Lord Justice Waller, Lord Justice Buxton and Lord Justice Lloyd Migrants' marriage rule bias is disproportionate

Analysis of Article 8 cases Law firm review of a number of Article 8 cases

Report on EU citizenship/rights European Commission article on citizenship and the rights it should confer

Briefing on marriage and immigration Law firm overview of immigration and marriage rights

IND Guidance on discretionary leave Home Office guide to the use of discretionary leave in Article 8 situations

Home Affairs Committee 5th Report 2006: Report to which BWB submitted evidence, with subsequent recommendations (see page 75 ff, in particular para 299 citing BWB)

Govt reply to HAC 5th Report Government response to Home Affairs Committee 5th Report, above (see page 29, section 64 in particular)

DP 3/96 Home Office policy guidance on cases where persons liable to removal action are married to a UK citizen.

Article 8 determinations

If you need to understand how decisions are made in Article 8 court appeals, have a look at a few of the cases below: these and others are publicly available on the internet.

Case determinations: UK courts

http://www.bailii.org/ew/cases/EWCA/Civ/2005/105.html

http://www.ait.gov.uk/Public/Upload/j814/2004_ukiat_00007_vl_drc_cg.doc

http://www.ait.gov.uk/Public/Upload/j1841/00001_ukait_2006_mk_democraticrepublicofcongo_cg.doc.

http://alpha.bailii.org/uk/cases/UKIAT/2006/00044.html

http://alpha.bailii.org/ew/cases/EWCA/Civ/2003/765.html

http://www.ait.gov.uk/Public/Upload/j1881/00011_ukait_2006_sa_iraq_cg.doc

http://www.humanrights.org.uk/5/ In particular see the case of Baiai, on the Immigration page of this excellent site, for a judgement on the right to marry

Case determinations: European courts

Case of Amrollahi Case of Amrollahi: Legal guide to a case using Article 8 as an argument against removal

Case of Boultif Case of Boultif: European precedent of the successful use of Article 8 to stop removal

More determinations can be found through the AIT website:

http://www.ait.gov.uk/practice_directions/documents/cg_list/cg_list_last_updated_09_01_07.pdf

4.2 Applications cannot be made from within the UK and can only be made to British embassies or consulates abroad. There is a fee of £260 for making a fiancé(e)/proposed civil partner visa application.

4.3 To obtain a fiancé(e)/proposed civil partner visa, the couple will have to show that they are in a genuine relationship, planning to marry or form a civil partnership and that they have sufficient financial resources and accommodation to support and house themselves without accessing public funds for the foreign fiancé(e)/ proposed civil partner. The fiancé(e)/proposed civil partner will not be allowed to take employment during the period of the fiancé(e)/proposed civil partner visa. Once married or having formed a civil partnership, an application to remain in the UK as a spouse/civil partner should be made on form FLR(M), see paragraph 3.5 above.

5. EUROPEAN ECONOMIC AREA FAMILY PERMITS

5.1 The European Economic Area (EEA) expanded in May 2004. Currently the EEA Member States are:

In order to be able to benefit from Community law, the EEA national must, among other things, be outside of her/his country of citizenship. It is for this reason that in Northern Ireland a person who holds dual British/Irish citizenship would rely on her/his Irish citizenship to support an application by a family member to enter the UK to reside with her/him. This is so even if that person has never been outside of Northern Ireland.

Citizens of the EEA countries are entitled to live and work in the UK under European law and members of the family of an EEA national have rights to enter and remain and work in the UK along with the EEA national worker even if they are not EEA nationals themselves.

Citizens from the ‘new accession’ states - ie the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia, are currently referred to as the ‘A8’ nationals. Certain restrictions have been imposed on the first twelve months of some A8 nationals’ stay in the UK, a complete explanation of which is outside the scope of this document. However, their rights in relation to family reunion are explained at 5.5 below.

5.2 EEA citizens working in the UK (either employed or self employed) are entitled to have their family members living with them in the UK, even when their family members are not EEA citizens themselves. For example, if an Irish passport holder who is living and working in Northern Ireland has non EEA family members, they can live here with her/him, irrespective of the family member’s nationality.
Even if the Irish spouse/civil partner is not currently employed or self employed, it may be possible for her/him to qualify to bring her/his non EEA family member to the UK if s/he has previously worked in the UK and is either unemployed but looking for work, retired or permanently incapacitated.

5.3 Where a UK citizen has resided and worked in another EEA country and returns to the UK as a worker, her/his non EEA spouse/civil partner/partner in a durable relationship and/or family members may be able to join her/him, as a result of the case of Surinder Singh, which extended EEA rights in such instances. However, the recent case of Akrich in the European Court of Justice has resulted in a change to the immigration rules. The rules now state that, in order to be issued with an EEA family permit, the non EEA spouse/civil partner/partner in a durable relationship, if entering the UK from another EEA country, must have been lawfully resident in that other EEA country before entering the UK.

5.4 The non EEA family members’ entitlement to remain in the UK exists under European law, irrespective of when the application for a family permit or residence document is made and irrespective of the Home Office delay in issuing the documents. It is an automatic entitlement and the application to the Home Office is simply a request for evidence of these rights.

5.5 ‘Family members’ for the purposes of the EEA regulations, is defined as:

- spouse or civil partner; or

- sons and daughters, grandsons and grand-daughters of either the EEA national or her/his spouse/civil partner, up to the age of 21, and over 21 if they are still dependent;

- dependent parents, grandparents and great grandparents of either the EEA national or her/ his spouse/civil partner.

5.6 Extended family members

The Immigration (European Economic Area) Regulations 2006 recognise a person who is in a ‘durable relationship’ with an EEA national as being an ‘extended family member’. The Immigration (European Economic Area) Regulations 2006 came into effect on 30 April 2006 and it still remains to be seen how this provision will be applied and what will constitute a ‘durable relationship’. However, it may be possible to establish a ‘durable relationship’ even if the couple have been living together for less than two years. An application for a residence card on this basis will not have an automatic right to be granted but the Immigration (European Economic Area) Regulations 2006 state that the Secretary of State must issue a residence card in these circumstances if it is appropriate to do so. Therefore, the application must merely be ‘facilitated’. It is set out that the Secretary of State must undertake an extensive examination of the personal circumstances of the applicant in this type of application. This is a complex application and specialist advice should be sought.

Other relatives may qualify in certain circumstances.

5.7 Where the A8 national is in the first twelve months of stay in the UK then s/he is entitled to be joined in the UK only by her/his spouse/civil partner, their children who are aged under 21 or are dependent, and dependent relatives in the ascending line. One main difference of treatment compared to other EEA nationals is that these A8 nationals do not benefit from the right to bring other, more distant, relatives over.

5.8 Spouses, civil partners, partners in a durable relationship and other family members in the UK under these European rules are entitled to take employment, claim benefits and receive medical care under the NHS as well as social services, depending on their needs, in the same way as the EEA nationals. However, it may be difficult to evidence these rights whilst the application is being processed. In recognition of this, the Home Office recently agreed to issue a letter to applicants while their applications are being processed, confirming that they have a right to work.

5.9 EEA family permits are a type of entry clearance or visa allowing the holder to enter the UK. They can be issued ‘over the counter’ at British embassies/consulates abroad without payment of a fee. The Foreign and Commonwealth Office website www.fco.gov.uk lists the British embassies abroad with their telephone and fax numbers as well as email addresses.

5.10 Applications for EEA family permits must be made to the UK visa authorities abroad, despite being based on the fact that one spouse/civil partner/partner in a durable relationship has a European passport other than British.
For dual Irish/British citizens living in Northern Ireland, an EEA family permit application is based on their Irish citizenship, so they will be required to produce their Irish passport as evidence of their Irish citizenship. Their British passport is not relevant to such an application. See paragraph 5.1 above.

5.11 Applicants for EEA family permits are required to show the original of the following documents:

- the passports of both spouses/civil partners/partners in a durable relationship and any children or other family members to be included in the permit;

- birth certificates of any children to be included on the family permit, naming both parents;

- marriage or civil partnership certificate or evidence of a ‘durable relationship’;

- evidence showing the relationships of any other family members covered by the application;

- evidence of the EEA citizen’s employment or self employment in the UK (such as wage slips, letter from employer, contract of employment, accounts etc); and

- evidence that the EEA citizen lives in the UK (such as household bills in her/his name, tenancy agreement, mortgage documents etc).

5.12 Unlike an application for a UK spouse/civil partner/partner visa, there is no requirement to show evidence of the financial standing of anyone involved in EEA family permit applications.

5.13 There is some concern that the UK authorities may try to apply UK immigration law where the non EEA national is based outside the EU or not lawfully resident in a member state. In these circumstances, seek specialist advice.

6. RIGHT OF RESIDENCE IN THE UK

6.1 EEA family permits issued abroad are usually valid for six months, the family must travel to the UK during this time. Once in the UK, an application should be made by the European spouse/civil partner/partner in a durable relationship to the Home Office in Croydon for an EEA Registration Certificate and an EEA residence card which consists of a stamp in the passport of the non-EEA spouse/civil partner/partner in a durable relationship. Likewise, if the non EEA spouse/civil partner/partner in a durable relationship and/or other family members are already in the UK in some other capacity, an application can be made for the EEA registration certificate and EEA residence card. Unlike most other Home Office applications, it is not necessary to use a particular form in this case, however, the Home Office has devised Forms EEA1 and 2 which request all relevant information and are easy to complete. EEA1 is for EEA nationals applying (naming their EEA family members). EEA2 is for applications by non EEA family members of EEA nationals. The procedure and requirements for both forms are the same. They are available on the Home Office website at www.ind.homeoffice.gov.uk. This application is free. In order to support an application by the non EEA spouse/civil partner/partner in a durable relationship, the EEA national must complete and lodge the EEA1 form at the same time.

6.2 The completed form should be sent to the UK Home Office in London, the address can be found at the end of Forms EEA1 and 2. A copy of all documents submitted should be kept and they should be sent via recorded or special delivery. The evidence required is basically the same as that listed above at paragraph 5.11 above along with passport-size photographs. The proof of being employed in the UK can be provided by the employer signing the relevant section of the form. EEA registration certificate and residence cards are usually valid for five years. However, where the applicant has temporary employment or is seeking work, they may be issued for shorter periods. Renewed applications can be made at the end of the period granted, depending on the circumstances at the time.

6.3 Generally speaking, EEA rights can be exercised irrespective of a person’s previous immigration status (eg, if s/he was here illegally before marrying or forming a civil partnership with an EEA national). Furthermore, there is no requirement that the non EEA family members entered the UK lawfully. However, the European Court of Justice case of Ackrich must be noted with caution. Mr Ackrich had a very poor immigration history, having been deported from the UK and re-entered illegally. This was among the factors which led to the European Court of Justice making an unusual decision that he could be refused an EEA permit. Following the decision in this case, the Home Office amended the immigration rules as referred to at paragraph 5.3 above.

6.4 After five years, providing the EEA spouse/civil partner is still working and living in the UK and the couple have not divorced/dissolved their civil partnership (unless the divorce or dissolution was as a result of the non-EEA national being the victim of domestic abuse), the EEA and non-European spouse/civil partner and family members will be able to apply for indefinite leave to remain in the UK. This is still the case if a couple are still married but not living together. The application can be made on Forms EEA3 and 4 which are available on the Home Office website.

6.5 Even if the couple divorce or dissolve their civil partnership, there may be circumstances, such as having children at school in the UK, in which a further EEA residence document can be issued.

This area of law is often subject to change and development, therefore a person in immigration difficulties may wish to obtain expert advice (see paragraph 1.1).

7. POST NUPTIAL IRISH CITIZENSHIP AND NATURALISATION

7.1 People who are married to an Irish citizen (but not civil partners) can apply for Irish citizenship through naturalisation once they:

- have been married for three years; and

- have been resident in Ireland (North or South) for three years:

- one of which was immediately prior to the application; and

- the other two were within the previous four years; and

- intend to reside in Ireland (North or South) after naturalisation.

7.2 Once Irish citizenship has been granted, the holder can then apply for an Irish passport. The details and forms for these applications can be obtained from the Department of Justice website: www.justice.ie

Or by post:

The Citizenship Section, Department of Justice, Equality and Law Reform, 13/14 Burgh Quay, Dublin 2. Tel: 00 353 1 616 7700. Helpline operates 10.00 am - 12.30 pm Tuesdays and Thursdays.

7.3 There are currently delays of several months in processing these applications.

8. APPEALS

There are appeal rights where applications for visas, permits or residence documents are refused. However, they have very tight deadlines and can be complex, seek legal advice without delay in such circumstances.

9. RIGHT TO MARRY OR FORM A CIVIL PARTNERSHIP

A person wishing to get married or form a civil partnership in the UK who is under immigration control has to give notice of intention to marry or form a civil partnership at the Registrar’s office, notice of marriage or civil partnership in Northern Ireland can be made by post. A recent amendment to the immigration rules includes strict new eligibility criteria before the notice to marry or form a civil partnership is accepted. These include:

- entry clearance has been granted expressly for the purpose of marriage in the UK; or

- written permission from the Secretary of State has been obtained to marry or form a civil partnership in the UK in the form of a Certificate of Approval from the Home Office’s Immigration and Nationality Directorate; or

- s/he falls within a class of persons specified as exempt from satisfying the criteria by the Secretary of State.

It is arguable that these criteria are contrary to EU law with respect to free movement. A recent court case decided that the restrictions are contrary to the European Convention on Human Rights. As a result of this decision, the Home Office has agreed to re-write its policy on this point, however at time of writing, this has not yet happened. It may be that these new measures will be open to legal challenge and the Law Centre would be interested to hear from people prevented from marrying or forming a civil partnership by these restrictions.

10. Useful websites and addresses

Law Centre (NI)

124 Donegall Street Belfast BT1 2GY. Telephone 028 9024 4401.

Western Area Office: 9 Clarendon Street, Derry, BT48 7EP. Telephone 028 9023 9938.

Citizenship Section, Department of Justice, Equality and Law Reform (Republic of Ireland)

13/14 Burgh Quay, Dublin 2. Telephone 00 353 1 616 7700.

Websites

UK Department of Justice: www.ind.homeoffice.gov.uk

Foreign and Commonwealth Office: www.fco.gov.uk

Republic of Ireland Department of Justice: www.justice.ie

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Same-sex partnerships/Unmarried partners

See also Civil Partners/Spouses

Opposite sex couples who are not married are referred to as "unmarried partners", same sex couples who are not in a civil partnership are referred to as "same sex couples". The rules are the same whether an unmarried or same sex partner.

These rules not only apply to people in relationships with British citizens but also to people in relationships with UK permanent residents and to other nationals who have certain types of limited stay in the United Kingdom. There are also very similar provisions for the unmarried and same sex partners of European Economic Area nationals who are living in the United Kingdom - these are dealt with by the European Law concept of "durable relationship".

The immigration rules require that the couple must be living together in a relationship "akin to marriage or civil partnership" which has continued for two years or more. This is interpreted by the Home Office and Embassies abroad to mean two years' cohabitation and strong evidence of this cohabitation will be needed.

There are a number of other requirements to the rules which can be read in full at paragraph 295 AA onwards of the immigration rules.

The appropriate place to make the application (in the UK or outside), the form to be used, and the length of stay to be granted, all depend on the particular circumstances of the couple.

Many applications fit clearly within the rules but many people do find it difficult to meet the cohabitation requirement or have a difficult immigration history. If this is the case, we can help. If you are in a committed relationship, no situation is hopeless!

The Civil Partnership Act 2004 came into force on 5 December 2005. A civil partnership can form the basis of an application to remain in or enter the United Kingdom. The rules mirror those for spouses.

The crucial difference between civil partners and “same sex partners” (see our page on this topic) is that civil partners do not need to show a prior period of cohabitation for an application to be successful.

It must be remembered, though, that to all intents and purposes, civil partnership is “gay marriage” and, as with marriage, there are responsibilities as well as rights. A civil partnership should never be entered into without an understanding of those rights and responsibilities.

Applications can be made by the civil partners of British citizens, UK permanent residents, European Economic Area nationals who are living in the United Kingdom and of other nationals who have certain types of limited stay in the United Kingdom. Also, certain overseas same-sex unions are recognised as being equivalent to civil partnership and can be used as the basis of an application.

The appropriate place to make the application (in the UK or outside), the form to be used, and the length of stay to be granted, all depend on the particular circumstances of the couple. Also, couples must consider how they will enter into the civil partnership as the 'foreign partner' will need the permission of the Home Office if in the United Kingdom or will need a proposed civil partner of visa if coming from abroad to enter into a civil partnership.

If you plan to make an application yourself you must read the Immigration Rules relating to civil partnerships and the Home Office policy section thoroughly as this page only provides a very brief overview. The partners of EEA nationals should follow the European guidance specific to them.

This firm was heavily involved in the consultation process leading up to the introduction of the Act and the firm has successfully represented many civil partners and prospective civil partners already and we are happy to advise in any situation.

See also Unmarried/Same Sex Partners.

• Income support and income-based jobseeker's allowance
• Housing and homelessness assistance
• Housing benefit and council tax benefit
• Working tax credit
• A social fund payment
• Child benefit
• Any disability allowance.