GAY MIGRATION: THE OPTIONS UNDER UK IMMIGRATION LAW

What are your options if you are British or if you are lawfully living and settled here ( ie you have been granted permanent residency/indefinite leave to remain ) and you and your same sex partner want to live here together? If your partner is not British and is not a citizen of the EU, the UK immigration rules can seem complicated and daunting and the process can prove highly expensive. Below I set out the possible routes you can take

CIVIL PARTNERSHIP: UK Immigration law has now placed civil partnership on a par with marriage in the rules. This had until recently certain consequences. If your partner was subject to immigration control ( eg, s/he is here on a student or work visa ) and you both decide you want to civil partnership here in the UK, then s/he had to obtain permission to do so. This was called a Certificate of Approval and was obtained from the UK Border Agency. Happily this scheme has recently been abolished succinctly because it breached fundamental human rights with regard to the right to marry and found a family. Now you can civil partnership here even if you are subject to immigration control.

CIVIL PARTNERSHIP IN THE UK: If you are British and/or settled here and your partner has existing leave as a student or worker or in some other immigration category and you civil partnership here, your partner may need to exit the UK to apply for a partner visa. “Switching” from your current immigration category into civil partnership category is rarely possible and it is not possible if your non-British and/or non-settled partner is here under the points based system, was granted 6 months or less leave to remain when s/he came here, eg if s/he came in as a visitor, unless there are compelling and/or other reasons as to why they cannot return to their own country and apply for the civil partner visa from there.  If that be so then your partner is likely to be on a 10 year route to settlement. The position is quite complicated and it is recommended that advice is sought.

CIVIL PARTNERSHIP ABROAD: Another option is not to civil partnership here but to do it in the country where your partner comes from. This is fine if s/he is American or Australian but obviously not if s/he is African, South American, Brazilian, Chinese, Japanese or Indian etc. If you both civil partnership abroad and then you want to bring your partner here to the UK to live with you, s/he will have to apply abroad for a civil partner visa which is the equivalent to the spousal visa. From 6 April 2014 the fee for this is £880. The fees for all immigration applications are liable to increase every six months. Please see the new UK Border Agency website. Most applications can be made on line to the British High Commission which governs the place of normal residence in their home country. WHAT THE RULES REQUIRE: The rules require that you both have and can prove that you have adequate maintenance ( can support yourselves without recourse to state benefits ) AND adequate accommodation ( this can be met by having a room which you both will occupy exclusively ). You also need to prove that you have met and that you intend to live together permanently. The evidence usually submitted with such an application is constituted by passports, wageslips if employed and accounts and tax returns if self-employed , bank statements, proof of mortgage or tenancy agreement, evidence of contact such as emails, letters, birthday cards, evidence of visits to each other shown on the passport with entry and exit stamps, phone records, photos and the Civil Partner certificate. On the relevant application form you will be asked questions about both your employment situations, your living costs and income and questions as to when you met, where you met and when you decided to Civil Partnership. The UK Border Agency only accepts original documents ( or certified copies with a good reason for not supplying the original ) so it is important to take copies of passports and certificates before sending them in as they do sometimes lose them…. LEAVE TO REMAIN: If granted a Civil Partner visa, your partner will get 30 months approx. leave to remain. Around 5 weeks before that leave expires, s/he should apply here in the UK for an extension until s/he has been here with leave in partner category for a total of 5 years in which event they can then apply for indefinite leave to remain. ) You both have to prove the all same things all over again, ie adequate maintenance and accommodation and that the relationship is still continuing. An indefinite leave to remain application made in the UK currently costs around £1000.

CIVIL PARTNERSHIP IN THE UK WHEN FOREIGN PARTNER IS ABROAD: Marriage Visitor: If you cannot civil partnership abroad and/or you want to do it here and your partner is not here or cannot stay here any longer because his/her leave is about to expire, s/he can apply abroad for a civil partnership/ marriage VISIT visa which will enable them to come here to civil partnership with you. This may give them UP TO to 6 months max leave to remain here but s/he will have to return to her home country after the civil partnership ceremony and before that leave expires. Then once back in her home country, s/he will have to apply for the Civil Partner visa ( see above ). A visit visa currently costs £75. Proposed Civil Partner ( Cf Fiance ): The other option, if your partner is abroad and you want to civil partnership here, is for them to apply for a Proposed Civil Partner visa ( equivalent to a fiancé visa ). This visa has a duration of 6 months and the relevant rule envisages that you both will civil partnership with each other before that 6 months is up. This costs the same as the Civil Partner visa, ie £900 approx. Again you have to prove the same things like adequate maintenance and accommodation and intention to live together permanently and provide proof of your ongoing contact. If granted your partner will get 6 months’ leave to remain and around 5 weeks before that visa lapses s/he will need to apply in the UK for further leave to remain as a civil partner. S/he will get 30 months’ leave initially as your civil partner. The downside of this PCP visa is that s/he is prohibited from working whilst s/he is on it. Once s/he has applied for and been granted further leave to remain as a civil partner following on from the Civil Partnership ceremony, s/he can work without restriction. If not British a person is regarded as settled here if they have indefinite leave to remain/permanent leave to remain. Such persons are generally regarded as being free from immigration control although indefinite leave to remain can be taken away from a person if they engage in serious criminal conduct, terrorism or if it was obtained by fraud and/or deception. As said above, around 5 weeks before the Proposed Civil Partner visa lapses, your partner will need to apply for a further leave to remain as a Civil Partner of a British citizen or as the Civil Partner of a person present and settled here. This application costs £580 approx. at present and if granted, it will give them 30 months’ leave to remain. Around 5 weeks before that leave runs out, s/he will need to apply for an extension. Once s/he has been here on partner leave for 5 years, s/he can apply for indefinite leave to remain. This application currently costs £1000 approx. You will both need to prove all the things mentioned above again and also that you are still together.

CONSEQUENCES OF RELATIONSHIP BREAKDOWN: If your relationship breaks down during the initial period s/he will lose any rights she has to be here (unless the relationship breaks down as a result of domestic violence: If able to prove that, s/he could then apply for and be granted indefinite leave to remain ) unless s/he can come within another immigration category AND the rules permit him/her to switch into that category which is unlikely. S/he would usually have to return and apply in another category from abroad.

HOW TO CIVIL PARTNERSHIP: In brief, to Civil Partnership here you need to give notice of your intention to register your CP to a registrar at a designated register office. There are 76 designated registry offices in England and Wales and a list of them can be found on the General Register Office website at www.gro.gov.uk or call 0151 471 4803 or email marriages.gro@ons.gov.uk. Both of you must have at least 7 days residence in a registration district before you can give notice to register your CP. You give such notice at any designated register office and both of you must attend together. You need to take evidence of your names and addresses, ages, nationalities, and if either of you has been previously married or civil partnershipped , proof that you are now free ( eg divorce certificate ) to register a Civil Partnership. After you have given Notice to register your Civil Partnership, you have to wait 15 full days before your wedding/registering of your CP can take place. Once your Notice has been accepted, your CP can take place at any register office or approved premises. The Notice to register your CP is valid for one year from the date it was given.

UNMARRIED SAME SEX PARTNERS: Yet a last option for couples is to apply for the unmarried partner’s visa. To qualify for this you both need to prove that you have been living together in a relationship just like marriage for at least two years. This is proven by producing letters and other documents showing that you have lived at the same address for over two years. You also need to prove the things explained above, eg, adequate maintenance, accommodation, intention to live together permanently etc. If granted your partner will get 30 months’ leave to remain and around 5 weeks before the end of that leave, s/he will apply for an extension. After 5 years’ leave on a partner visa, s/he will be entitled to apply for indefinite leave to remain as an unmarried partner of a British person or of a person present and settled here. This can be helpful for couples where one party is unable to divorce.

CONCLUSION: As can be seen from the above, getting hitched and/or being able to remain here with to a foreign same sex partner on the basis of that relationship can be expensive and complicated and advice should be sought from a properly qualified advisor. For immigration advice, representation and information please contact Lesley at www.lesleylonghurstwoods.com or call 0208 985 8716/07957 959764 or email lezwoo@btopenworld.com Lesley Longhurst-Woods has been a level 3 ( highest level ) Immigration Advisor regulated by the Offices of the Immigration Services Commission and she is also a practising Barrister. She has been practising Immigration Law since 1992 and she provides an extremely high level of professional and gay friendly service at a substantially lower costs than a solicitor. She also practises in Civil Litigation, Family, Housing, Discrimination, Housing and Human Rights.

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