Immigration Rules, Appendix FM - Partners & Spouses
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Spouses & Civil Partners
The immigration rules for spouses and civil partners wishing to settle permanently in the UK are set out in 'Appendix FM' to the rules. A brief summary is detailed below.
It is extremely important for applications to be carefully prepared.'Specified evidence' must be submitted - in accordance with 'Appendix FM-SE' - to prove that certain requirements are met.
In-country applicants who do not fully meet the normal requirements of the rules (below) may still be granted leave to remain, if the Home Office is satisfied that one of the 'Exceptions Criteria' apply (paragraph EX.1 of the rules). The exceptions criteria are loosely-based on Article 8 of the Human Rights Act, which concerns a person's 'right to respect for their private and family life'. An applicant who is granted leave under the exceptions criteria will need to complete 10 years' leave to remain before they are eligible to apply for settlement, unless they are subsequently eligible to 'switch' into the 5-year route to settlement.
We have considerable experience in dealing with applications on forms FLR(M), FLR(FP) and SET(M).
A minimum “specified gross annual income” of at least £18,600 will apply, unless the applicant is exempt**. The income required will increase if there are children who are not British Citizens, or who are not settled in the UK, or who do not qualify for indefinite leave to enter, or who do not have the right of residence under European law. For children who do not fall into one of these categories, an additional £3,800 will be required for the first child, and an additional £2,400 for each additional child.
'Specified savings' and 'non-employment income' can be used in certain circumstances to meet any shortfall in the gross annual income requirement (above). However, only savings above £16,000 can be relied upon, and any such savings must have been held for at least 6 months and will be divided by 2.5 for calculation purposes if applying for limited leave to enter or remain. A gift of monies can be relied upon, but not a loan.
Under the new rules it is no longer possible to rely upon third-party financial support, and the applicant’s potential to find employment will not be taken into consideration. For entry clearance applications, the applicant’s overseas earnings will not be taken into consideration.
The minimum income requirement applies at all stages, i.e. when applying for an extension of stay and when applying for settlement (indefinite leave to remain).
The Home Office has published very detailed guidance which sets out exactly what income and savings can be taken into consideration, and the 'specified evidence' which must be submitted. It is vital that this guidance is complied with, otherwise the application will normally be refused.
**The minimum income requirement will not apply if:-
(a) the applicant’s partner is receiving one or more of the following:-
Disability Living Allowance (DLA);
Personal Independence Payments (PIP);
Severe Disablement Allowance;
Industrial Injury Disablement Benefit;
Attendance Allowance; or
Carer’s Allowance; and
(b) the parties can adequately maintain and accommodate themselves without claiming any (additional) public funds. Third-party financial support is not permitted.
The rules include detailed guidance on factors which may be associated with genuine and non-genuine relationships. Apart from this, the new rules are the same as the old rules, i.e. the relationship must be shown to be genuine and subsisting, with an intention to live together permanently in the UK.
Accommodation requirements
Both the new and the old rules require the accommodation to be adequate, and not overcrowded. The new rules introduce a requirement for 'specified evidence' to be provided.
English language requirement
The applicant will need to pass a basic English language test in speaking and listening which has been approved by the Home Office (unless an exemption applies).
Settlement
Achieving settlement (indefinite leave to remain) will take
5 years, or 10 years if relying on one of the 'exceptions criteria'. Leave to remain as a spouse/ partner will be granted in batches of 30 months.
The ability to apply for immediate settlement, for couples who had lived together outside of the UK for at least 4 years before returning to the UK, was abolished on the 09-July-2012.