The changes to the immigration rules which came into force since the 9th of July 2012 allows same sex partners to settle in the UK under the Appendix FM. The new rules are relatively more complex and rigid when compared to the old rules. We there advice applicants to be sure that they are well versed on the rules before submitting. In some cases, you find out that there are a specific kind of evidence that the Home office may be requiring to show certain things.
Please note, in the light of the aforementioned immigration rules, transitional arrangement refer to a situation where an individual is currently on a leave to remain based on the old rules. Such a person will continue to be related with based on the old rules.
Importantly, applicants that may not have met the regular requirements may yet be granted leave to remain under the exceptions criteria. Such criteria may be found in paragraph EX.1 of the immigration rules. These exception criteria are weaved around Article 8 of the Human Rights Act.
Article 8 of Human rights Act relates to the exception criteria in the paragraphs that concern rights to private and family life. It is important to note also, that if a person has been granted leave under this route, they will no longer be subject to settlement under the 5 years route in an immigration category but 10 years.
In order to qualify to apply under this route, the sponsor must be able to demonstrate that they earn the specified gross annual income which is set as a minimum of £18,600. Please note that this figure does not include dependants who may be applying with the main applicant. The prices go up by £3,800 for the first child; while for any additional children, an extra £2,400 will need to be shown per child.
It is important to note that applicants will no longer be able to use 3rd party funding in this application. Also the applicant's potential to be employed in the UK will no longer be taken into consideration. In the case of entry clearance applications, income earned overseas can also no longer be relied upon. However gifts and aids can be relied upon; note that it must not be a loan.
Applicants who are on the following may be exempt from meeting the financial requirement: -
If as result of the exemptions above, you are exempt from meeting the financial requirement, the applicant will still have to show that the UK partner meets the financial as well as accommodation requirements.
Applicants must show that they have met the English language requirement. The English language requirements entails the applicant demonstrating sufficient knowledge of English language. Importantly, if the applicant is from a majority English speaking country, they will be exempt. Also, if they posses a degree from a UK university, they will also be exempt.
If the applicant has sat and passed the required English language test at least at Level A1 of the CEFR from a provider accredited by the UKBA, they will also be exempt from meeting the English language requirements.
An entry clearance application will be refused if any of the following apply:-
It is very important that the same sex partner is either a British national or a person present and settled in the UK. The age of the parties in question also count. Both the applicant and the sponsor must be over the age of 18.
There are also instances where either by law or any other legally binding terms, the parties in question are prohibited from been in a relationship. In order be eligible for entry clearance under this route, both parties must not be prohibited from been in a relationship.
There also has to be evidence that the same sex partners intend to get married and live together permanently as well as not been a polygamous one. The polygamous factor means that neither party is in a previous relationship and where there was a previous marriage, the relationship must have broken down irretrievably
The same sex partners must also meet adequate accommodation requirements. They must be able to show that there is a decent place for them to live in while in the UK and would not be relying on the government to solve their accommodation issues. It is very important that they show that the accommodation is or will not be overcrowded and/or will not contravene public health regulations.
There is also the English language requirements that needs to be met. Applicants must show that have a good knowledge of English language by way of either a national of a majority English speaking country or pass the required English language test (as approved by the UKBA) or has a degree taught in English from a University in the UK.
Our family immigration lawyers boast of over 65 combined years' experience in immigration law and have assisted a good number of clients in obtaining their partner visas to the UK.
If you are looking to switch into the same sex partner visa, you may do so either under the old or new rules. The old rules will allow if you applied to switch before the 9th of July 2012. In that case, you will not need to meet the financial requirement of earning a minimum gross income of £18,600 per year.
The new rules on switching are enshrined in Part 8 of the Immigration Rules under Appendix FM. Based on the new rules, persons looking to switch into this route, will need to meet the financial requirement of earning gross income of £18,600 per annum.
Long Residence and PBS Dependants
Where the PBS dependant migrant has become a settled person in the UK on the basis of long residence, the dependant migrant will be unable to extend their current leave or obtain ILR under their current route. The will have to switch to the same sex partner of a settled person.
Importantly, if you have been granted leave to remain prior to the 9th of July 2012, you can apply for further leave under the transitional provisions at A280 (C) under the Part 8 Immigration Rules. If you were granted leave after the 9th of July 2012 and your partner have obtained indefinite leave to remain your will be able to extend your leave under Appendix FM.
In order to be eligible for extension of leave to remain as a same sex partner (Further leave to remain - FLRm), the applicant must be a same sex partner of a person British citizen or a person present and settled in the UK.
Importantly, same sex partners are also qualified to apply for an extension of leave whether or not they are in a civil partnership. The rules that govern the durability and subsisting relationships will also apply here regardless of whether or not there was a legal ceremony. Same sex partner extension applicants would have to be physically present in the UK as at the time the application is been made.
As at the time of the application, the applicant must have a valid leave to remain in the country. Even though the UKVI allows for a 28 day grace period after the expiration of your visa, we would normally recommend not to leave it late.
Contact our immigration solicitors today if you are looking to make this application.
Holders of the Same sex partner visa who have continuously resided in the United Kingdom for a period of 5 years will quality for Indefinite leave to remain. You may apply using the SET (M) form.
If you were granted your same sex partner visa prior to the 9th of July 2012, you can apply for settlement after a period of 2 years of continuous residence in the UK as a same sex partner. However for applications granted after that date, you will need to wait till you complete 5 years on the route before you can apply for ILR. Please note also, that you will still need to meet the financial requirement to be eligible for ILR; except you fall under the exceptions as specified under Appendix FM
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