22 February 2017 Supreme Court backs income threshold for partners of British Citizens

Settlement – Spouse/Civil Partner

If you are the husband, wife or civil partner of an individual who has settled status in the UK, you can apply to join them in the UK under this visa category.

If your application for entry clearance is successful, you will be granted permission to live in the UK for a period of 33 months, after which you would need to apply for a further 30 months before being eligible to apply for settlement after five years in the UK.  If you are already in the UK and apply successfully for leave to remain in this category you would be granted 30 months’ leave after which you would need to apply for a another 30 months’ leave in order to complete five years in the UK before being eligible for settlement.  This five year period is known as the ‘probationary period’ and if you are still married or in a relationship with your partner and you intend to live permanently in the UK at the end of this five years, you may apply for settlement, also known as indefinite leave to remain (ILR).

(It is no longer possible for an applicant to apply for “indefinite leave to enter the UK” prior to entry to the UK where the applicant has married or registered a civil partnership at least four years ago and has spent those last four years living together with their spouse/partner overseas.)

If the settled spouse has more than one wife or husband overseas, only one will be allowed to join them in the UK as polygamous marriages are not recognized under UK law.

Requirements for the settled person in the UK

If you wish to join your husband, wife or civil partner who is settled in the UK, you must first ensure that:

  • They are at least 18 years of age
  • They currently reside and have ‘settled status’ in the UK; OR
  • They are coming to live permanently in the UK with you

Requirements for an applicant intending to join their spouse/civil partner in the UK

If an Entry Clearance Officer is not satisfied any of the requirements of the Immigration Rule are met they will refuse the application.  Applicants are therefore advised to pay careful attention to the requirements and to seek clarification on any matter of uncertainty.

An applicant should qualify to apply for a spouse/civil partner visa if they are able to demonstrate the following:

  • The couple are both at least 18 years of age.
  • The couple have met before the application
  • The couple is legally married to the spouse or in a civil partnership recognised in the UK
  • The spouse or civil partner is present and settled in the UK
  • They intend to live together permanently
  • They are able to financially support themselves and any dependants without assistance from UK public funds and meet the minimum income requirements
  • They have adequate accommodation for themselves and any dependants which is legally owned or rented by the couple without assistance from UK public funds, and which will be occupied exclusively by the couple and any dependants (it can be a room in a shared house as long as it is exclusively occupied by the couple)
  • The applicant has passed an approved English language test to the A1 CEFR standard

Clarification of the requirements

Parties are both 18 years of age

Both parties in a marriage/civil partnership will now have to reach the age of 18 before they can apply for a visa to enter the UK or sponsor their spouse/civil partner to enter the UK.

The submission of passports with the application will be sufficient to demonstrate the age of the parties involved.

Parties to the marriage/civil partnership have met

Generally it is unlikely that individuals have never met their spouse/civil partner.  However, in certain circumstances, a married couple may not have met (e.g. arranged marriages, forced marriages, sham marriages).

The British Diplomatic posts will NOT waive the requirement for the parties to have met and therefore supporting evidence regarding the meeting of the parties to the marriage/civil partnership is very important.

Possible supporting evidence could be

  • Pictures of both parties during the relationship and/or at the wedding/civil partnership.
  • Tickets or bookings in both names in respect of places the couple have visited together.
  • The marriage certificate, as this itself sometimes mentions the presence of the two parties to marriage.

In addition to the above, the Entry Clearance Officer may also ask questions relating to this issue to ensure that the applicant has indeed really met their spouse/civil partner. Most frequent questions surround the place or time/day of first meeting, where the marriage ceremony took place, close family members of the sponsor, etc.

NB: Internet relationships

It is not sufficient for a relationship to have developed over the Internet in order to satisfy the requirements, unless the relationship at some point included a personal face-to-face meeting between the parties concerned.

Legal Marriage/Civil Partnership recognised in the UK

Applicants will need to show that they are either legally married or have officially registered a civil partnership which is recognised in the UK.

A legal marriage is one that is registered with the official registrar of the place where the marriage ceremony took place. The official registrar/local authority usually issues marriage certificates as proof of marriage which in return creates rights and obligations for both the parties.

In the majority of cases a marriage certificate will provide satisfactory evidence that a marriage has taken place.

A civil partnership is a legal relationship which can be registered by two individuals of the same sex.  It gives same-sex couples the ability to obtain legal recognition for their relationship.

The UK will recognise some legal relationships registered under the law of another country.

Where two people have officially registered an overseas relationship, they will be treated as having formed a civil partnership in the UK.

Present and settled in the UK

Applicants are required to demonstrate that the spouse or civil partner they intend to join is present and settled in the UK. This means that the settled person must be physically present in the UK at the time of the application, unless they are accompanying the applicant and wish to make the UK their home.

Present and settled means that the individual in the UK is settled (i.e. holds either indefinite leave to remain, a permanent right of residence, British citizenship or a Right of Abode in the UK) and, at the same time that an application is made, is physically present in the UK or is coming here with the applicant to live.

Please note that a British Citizen who has been resident overseas but who now intends to return to the UK to live can be regarded as present and settled in the UK.

Both parties intend to live together permanently

The applicant and spouse/civil partner must be able to demonstrate that a clear intention to live permanently with each other and that there is a strong commitment from both sides.  This is a difficult thing to prove and will usually be accepted if the genuineness of the relationship is accepted.

Evidence to support this intention could be a letter or statement from both parties formally declaring that they are married/in a civil partnership and intend to live together at a given address which is owned/occupied by the sponsor in the UK.

Please note that the Entry Clearance Officer may ask questions regarding the address or description of the place of residence in the UK. This is to confirm that the applicant has the intention to live together with the spouse/civil partner.

Maintenance without recourse to public funds

There is a minimum earnings requirement of £18,600 in order to sponsor spouses, fiancées, partners and civil partners for settlement in the UK.  If a child is also sponsored the minimum earnings requirement will be £22,400 and £2,400 for each further child.  (Please note this will not include British and EEA children, as well as children settled in the UK.)

At each stage, the applicant will be able to meet the financial requirement through one or more of:

  • Income from employment or self-employment of the sponsor (and/or the applicant if they are in the UK with permission to work). 
  • Specified non-employment income of the sponsor and/or applicant (but the applicant’s income will not be taken into account if they are not applying from the UK).
  • State (UK or foreign) or private pension of the sponsor and/or applicant. 
  • Any Maternity Allowance and bereavement benefits received in the UK by the sponsor and/or applicant. 
  • Cash savings of the sponsor and/or applicant, above £16,000, held by the sponsor and/or applicant for at least six months and under their control. 
  • Exemption from the financial requirement, where the sponsor is in receipt of a specified disability-related benefit or Carer’s Allowance in the UK. 

Evidence specified in Appendix FM to the Immigration Directorate Instructions (IDIs) must be provided to show the required funds available for the maintenance of the applicant (including dependants) and the sponsor.

These include but are not limited to:

  • Bank Statements
  • Pay slips
  • P60s
  • Letter from the sponsor’s employer(s) confirming employment and annual salary
  • Employment contract
  • Financial Statements/annual Accounts of the business (if the sponsor is self- employed)
  • Tax documents and accounts

Those in salaried employment will need to provide all the following: P60 (if issued), wage slips, the letter from the employer, bank statements and a copy of the employment contract.

Please note that this is not an exhaustive list and the supporting evidence required will depend on the applicant’s/sponsor’s individual circumstances.

Adequate accommodation without recourse to public funds

Evidence of arranged adequate accommodation will be very important for the application.  It will also need to shown that this accommodation will be legally and exclusively occupied.

Appropriate evidence can include:

  • Tenancy agreement; OR
  • Land Registry Certificate/mortgage paperwork

It is useful to have a letter from the local council confirming the number of rooms and the facilities/amenities available in the accommodation to confirm that there will be no statutory overcrowding in the accommodation.  As mentioned above, this can be a room or rooms in a shared house as long as those rooms are for the exclusive use of the couple.

English language requirements

If you are not a national of a majority English-speaking country or do not have a degree taught in English, you must pass an acceptable English language test with one of our approved test providers (please refer to the list of acceptable tests). In the test, you will need to demonstrate a basic command of English (speaking and listening) to at least level A1 of the Common European Framework of Reference.

Supporting Documents

In order to be able to demonstrate that you satisfy the above requirements, you will need to provide supporting documentation.

Please note it is often the case the application is refused simply owing to a lack of supporting evidence so it is important to be thorough in preparing this type of application.  Although the refusal of a spouse/civil partner visa triggers a right of appeal, the appeal process can take many months to be considered by the Immigration and Asylum Chamber (IAC) and therefore it is crucial that the application is well-prepared from the outset.

Switching Rules

It is important to note that applicants entering the UK for the first time on the basis of their marriage or civil partnership to a settled person must apply for Entry Clearance.

However those already in the UK on a valid visa of more than six months validity (this will normally exclude short-term category visas such as visitor or short- term students) may qualify to apply to extend or vary their leave in the UK on the basis of a legal marriage or civil partnership with a settled person in the UK.

It is again advisable to seek legal advice should you require clarification of your own visa status and whether you are permitted to extend or vary your leave in the UK.

Indefinite leave to remain

If your application is successful under this category, you will be granted permission to live and work in the UK for a period of 33 months (for entry clearance applications) or 30 months (for leave to remain applications). This is known as the ‘probationary period’ and under the current immigration rules, towards the end of this period, providing you are still married or in a civil partnership and you plan to live with your spouse/civil partner permanently in the UK, you may apply for settlement (Indefinite Leave to Remain).

In order to be eligible for indefinite leave to remain the applicant will need to show sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he/she is aged 65 or over at the time he/she makes his application.  From October 2013 they will also need to show an English language speaking and listening qualification to at least level B1 CEFR.  There must also be a continued intention to live permanently with each other and the minimum income and adequate accommodation requirements will also need to be satisfied.

Our Services

  • We can advise on the procedure for making a spouse or civil partner entry clearance application/leave to remain application
  • We can assess the merits of your application and advise as to how to improve your application to maximise the prospects of success
  • We can advise on an extension of leave in the UK as a spouse or an application for indefinite leave to remain after the ‘probationary period’
  • We can advise as to the procedure involved for including children as dependants
  • We can represent you in any applications for Entry Clearance, Leave to Remain, Indefinite Leave to Remain as a spouse or civil partner
  • We can advise as to the merits of an appeal should your entry clearance/leave to remain application be refused
  • We can represent you in any appeal  
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