Immigration Rules for same-sex couples

The Marriage (Same-Sex Couples) Act 2013 was passed on 17 July 2013. The first same sex marriages took place in March 2014.

Same-sex couples who got married overseas under foreign law, and were consequently treated as civil partners in England & Wales, are now recognised as married in England & Wales.

Settlement for same-sex couples 

The Immigration Rules allow same-sex partners who are married, unmarried partners or in a civil partnership to join their partner, who is ‘present and settled’ in the UK. 

How do same-sex couples qualify?

Under the Immigration Rules (Appendix FM for family members), a same-sex partner shall qualify to enter for the purpose of settlement in the UK if they fulfill the following criteria:

1. Both partners must be aged 18 years of age or above
2. The partners must be married, civil partners, or have lived together in a relationship similar to marriage or civil partnership, which has subsisted for two years or more.
3. The applicant must pass a Home Office approved English language proficiency test of A1 level in speaking and listening under the Common European Framework of Reference for Languages, unless exempt (due to age or medical grounds or compassionate reasons) or meet one of the following criteria:-
   • obtained an academic qualification deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Master’s degree or PhD in the UK
     OR
   • They are nationals of the United States of America; Antigua and Barbuda; Australia; the Bahamas; Barbados; Belize; Canada; Dominica; Grenada; Guyana; Jamaica; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Trinidad and Tobago, where English language is the majority-spoken language.
4. Any previous marriage or civil partnership must have broken down permanently before the application is made.
5. The couple must meet the “financial requirement” and provide specified evidence to prove they have the sufficient level of funds for the application.
6. Both must have the intention to live permanently in the UK and have adequate accommodation that they own or exclusively occupy.

Unmarried Same-sex partners of foreign diplomats posted to the UK? 

Unmarried same-sex partners of diplomats are not exempt from immigration control, nor do they benefit from privileges and immunities under the Vienna Convention on Diplomatic Relations 1961. However, a foreign national may apply for UK entry clearance as the unmarried same-sex partner of an accredited diplomat posted to or based in the UK for the duration of the partner’s posting.

There will be no need for applicants to fulfil the usual condition of having lived together for at least a two-year period, that is applied to other unmarried same-sex couples.

Such unmarried same-sex partners will be allowed to take employment in the UK, but unlike the unmarried same-sex couples of British citizens (and other persons legally settled in the UK), they will not qualify for settlement based on their relationship.

To qualify for entry clearance under the concession for unmarried same-sex partners of a diplomat, will have to show that:

• the relationship is recognised as durable by the diplomat’s state
• the relationship is equivalent to marriage
• The same-sex couple have intentions to reside together in the UK during the partner’s posting.

This visa will be a long-term, non-settlement visa route, issued at no cost.

Compelling and compassionate reasons

In some cases, same-sex couples may have compelling reasons to apply for settlement outside the Immigration Rules. This could be applicable where the couple:

• Have children together and/or
• the relationship may be less than 2 years’ duration.

Full supporting details stating the reasons for exceptional consideration must be submitted, alongside strong supporting evidence .

Same-sex relationship Genuineness test

The requirement to have lived together is normally applied strictly for unmarried same-sex couples. An unmarried same-sex couple must supply evidence that couple have lived together in a relationship similar to marriage or civil partnership, which is genuine and has subsisted for more than two years.

During the period of cohabitation they wish to rely on, a permissible period of staying apart can be up to 6 months, provided the separation was for good reasons such as one of the couple looking after a relative or having work commitments. They must provide evidence to justify their circumstances, including:

1. why the other partner couldn’t accompany them, if residing in separate locations; and
2. that relationship continued throughout that period, for example, by visits, letters, social media contact, logged phone calls.

Evidence to demonstrate same-sex couples are living together

The same-sex couple must provide at least six pieces of evidence addressed to them and their partner at the same address as documentary proof that they have been residing together during the 2 years prior to their application, if unmarried. All applicants (whether married or not) require evidence of cohabitation for leave to remain and indefinite leave to remain applications. 

The documents should ideally be addressed to them jointly, to the same address. If they do not have enough documents in their joint names, they must also provide documents addressed individually, to the same address.

The documents provided must ideally have been posted to the couple (i.e. be original and not electronic or PDF documents) and should cover the complete period of cohabitation the couple are relying on. They should also be from a minimum of 3 different sources. Some examples of official documentation that could be submitted include, but are not limited to:

• Joint bank accounts, bank statements of joint savings accounts, investments made jointly.
• Tenancy agreements, property mortgage documents, life insurance policy, mentioning the same-sex couple as beneficiaries;
• Birth and/or adoption certificates of children, showing both partners as parents;
• Any official document stating the same address for both partners, for example, council tax bills, utility bills, GP or hospital letters;
• Any other document that adequately proves the couple’s long-term commitment to each other.

Conclusion: The Immigration Rules offer an unmissable opportunity for same-sex couples to settle in the UK and eventually opt for British citizenship. Often, the process appears exhausting as the Home Office rules, and evidentiary requirements, are strict and unbending. 

For complete success, it is best to take legal assistance. A Y & J Solicitors have a proven track record and more than ten years of experience. The experts at A Y & J Solicitors are well versed with the Immigration Rules and provide tailor-made solutions to your unique case.