New case law on meaning of genuine and subsisting marriage - Free Movement
Please note that what the immigration officers are looking for is proof of a marriage that is based on equal partnership and is genuine. In the past, questions about the marriage were asked only at the point that immigration Factors which indicate a genuine and subsisting relationship include. Hi everyone, myself and my Brazilian fiance are starting to gather documents and evidence for our upcoming fiance visa application. I have a.
The required evidence of marriage or civil partnership is specified in paragraphs 22 to 26 of Appendix FM-SE. Where the applicant, their partner has, or both have previously been married or in a civil partnership, the applicant must provide evidence as specified in paragraphs 23 and 25 to 26 of Appendix FM-SE that the previous marriage or civil partnership has ended.
Where the marriage or civil partnership of either the applicant or their sponsor to a previous partner has not been legally dissolved, the applicant may still be able to qualify under Appendix FM as an unmarried partner or same sex partner, provided that they meet the criteria set out in paragraph GEN. Intention to live together permanently in the UK-The decision maker must be satisfied that the applicant and their partner intend to live together permanently in the UK.
In applications for further leave to remain or for indefinite leave to remain in the UK as a partner, where there have been limited periods of time spent outside of the UK during the period when the applicant had leave as a partner, this must be for good reasons and the reasons must be consistent with the intention to live together permanently in the UK.
Each case must be judged on its merits, taking into account reasons for travel, length of absence and whether the applicant and partner travelled and lived together during the time spent outside the UK.
Spouse Visa UK Successful! Income, Subsisting Relation Issues involved
These factors will need to be considered against the requirements of the Rules. If the applicant, their partner or both have spent the majority of the period overseas, there may be reason to doubt that the couple intend to live together permanently in the UK. What is the relevance of EX. Exceptions to certain eligibility requirements for leave to remain as a partner? Rather, where it applies, certain eligibility requirements under the 5-year partner route as to immigration status, finances and English language do not apply.
In these circumstances, where the applicant meets the relevant requirements, they will be granted leave under the year partner route instead. An applicant being considered under the year partner route must meet the requirements in paragraph EX. This paragraph applies if a i the applicant has a genuine and subsisting parental relationship with a child who- aa is under the age of 18 years; bb is in the UK; cc is a British Citizen or has lived in the UK continuously for at least the seven years immediately preceding the date of application; and ii taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK; or b the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.
For the purposes of paragraph EX. They do not have to meet both a and b. Even if the requirements in EX. The requirements in paragraph EX. Where the decision maker determines under paragraph EX. First, the decision maker must assess whether refusal of the application will mean that the child will have to leave the UK or is likely to have to do so.
Where the decision maker decides that the answer to this first stage is yes, then they must go on to consider secondly, whether, taking into account their best interests as a primary consideration, it is reasonable to expect the child to leave the UK. In doing so the decision maker must carefully consider all the information provided by the applicant, together with any other relevant information of which the decision maker is aware. Where the decision maker concludes under the first stage of this test under EX.
If it is considered that refusal would lead to unjustifiably harsh consequences for the applicant, the child or their family, leave will fall to be granted on the basis of paragraph GEN. The definition of insurmountable obstacles in paragraph EX. The onus is on the applicant to show that there are insurmountable obstacles, not on the decision maker to show that there are not. Relevant country of origin information should be referred to when assessing insurmountable obstacles.
The Home Office decision maker should consider the specific claim made and the relevant national laws, attitudes and situation in the relevant country. The assessment of whether family life can continue overseas will generally consider the likely situation in the proposed country of return unless there is information to suggest that the applicant or their partner might have a choice about where they choose to relocate to, such as where one or both of them has or have a right to reside in a country other than the country of proposed return, or where one or both of them has or have more than one nationality.
In that case the decision maker should consider whether there are insurmountable obstacles to family life continuing in any of the relevant countries. Lack of knowledge of a language spoken in the country in which the couple would be required to live would not usually amount to an insurmountable obstacle.
A material change in quality of life for the applicant and their partner in the country of return, such as the type of accommodation they would live in, or a reduction in their income or standard of living, would not usually amount to an insurmountable obstacle, unless this would lead to particular hardship or there were particular exceptional factors in the case.
The factors which might be relevant when considering whether an insurmountable obstacle exists include but are not limited to: Ability to lawfully enter and stay in another country Serious cultural barriers to relocation overseas The impact of a mental or physical disability or of a serious illness which requires ongoing medical treatment The absence of governance or security in another country What is the duration of leave granted?
When will an application for leave to remain as a partner be refused? The application will fall for refusal if the decision maker is not satisfied that all of the requirements of R-LTRP. Where an applicant does not meet those requirements of the partner route under Appendix FM, the decision maker must consider whether the applicant meets the requirements for leave to remain on the basis of private life in the UK.
The parent route under Appendix FM will not be relevant if the applicant has a partner. If the applicant does not qualify for leave to remain on the basis of private life and there are no exceptional circumstances as specified above, the application should be refused under paragraph D-LTRP.
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The decision letter must be clear about the information considered, including evidence submitted by the applicant, together with any relevant country information which may be considered as part of an assessment in relation to insurmountable obstacles and what is considered to be in the best interests of a child, if relevant.
The decision letter should make plain that all relevant factors have been assessed, in the round. The route is for applicants who meet one of the following: The parent route is not for couples with a child together who are in a genuine and subsisting partner relationship together. Applicants in this position must apply under the partner route where or once they are eligible to do so, or under the private life route.
An applicant cannot apply under the parent route if they are or will be eligible to apply under the partner route, including where the applicant is in a partner relationship but the couple have not yet been living together for two years. The year parent route is available to those who are in the UK and who meet the relevant suitability and eligibility requirements, including the fact that the child with whom the applicant has a genuine and subsisting parental relationship must meet all of the following: A parent cannot rely on their relationship with a child who is overseas to obtain leave in this route.
What does the UKVI mean by genuine & subsisting relationship
The applicant must prove that the child with whom they have a relevant relationship is under the age of They may be able to qualify for indefinite leave to remain settlement after completing months 10 years in the UK with limited leave as a parent under Appendix FM. Leave to remain as a parent under the 5-year route: Where an applicant is applying to join, or to extend their leave under, the 5-year parent route to settlement in the UK and they meet the requirements of R-LTRPT.
Where an applicant has extant leave under the 5-year parent route at the date of application, any period of extant leave, up to a maximum of 28 days, will be added to the period of leave that they are being granted under paragraph D-LTRPT. If an applicant granted leave to remain as a parent is receiving their first grant of limited leave on the 5-year route rather than their second grant following an earlier grant of entry clearance or leave to remain as a parent under Appendix FMthe applicant will in due course need to make an application for further leave to remain as a parent of 30 months.
They may be eligible to apply for settlement after completing 60 months 5 years in the UK with limited leave as a parent under the 5-year route under Appendix FM. If an applicant fails to meet all of the requirements because: For further guidance on the policy on recourse to public funds, see section 12 of this guidance.
Where an applicant has extant leave as a parent under Appendix FM at the date of application, any period of extant leave, up to a maximum of 28 days, will be added to the period of leave that they are being granted under paragraph D-LTRPT. If the applicant has already completed 60 or months in the UK with limited leave as a parent, they should be informed that, should the reason they do not meet the requirements for indefinite leave to remain be overcome, they will be eligible to make a further charged application for indefinite leave to remain at any time within the 30 month period of leave granted under paragraph D-LTRPT.
If not, they should make their next application no more than 28 days before their extant leave is due to expire, or within 28 days of completing the period of leave required for them to be eligible to apply for indefinite leave to remain. Under Appendix FM, entry clearance or leave to remain: Under Appendix FM, entry clearance or leave to remain under the year partner and parent routes will be granted subject to a condition of no recourse to public funds, unless the decision maker determines, in line with paragraph GEN.
In considering all applications for entry clearance or leave to remain as a partner or parent the decision maker must consider whether the suitability requirements in Appendix FM are met.
Partner or Parent- entry clearance: In all applications for entry clearance as a partner or parent the decision maker must consider whether the suitability requirements in paragraphs S-EC. The purpose of paragraph S-EC. In considering the suitability criteria under paragraphs S-EC. Partner or Parent- leave to remain applications: In considering all applications for leave to remain as a partner or parent the decision maker must consider whether the suitability requirements in paragraphs S-LTR.
In considering the suitability criteria under paragraphs S-LTR. In considering the suitability criteria under paragraph S-LTR. This will be a case-specific consideration. Where an application for further leave on the 5-year partner or parent route is received from a foreign criminal: This is because deportation remains conducive to the public good and in the public interest. Such cases should be referred to Criminal Casework Directorate.
Home Office Interview - Genuine and Subsisting Relationship | IAM (Immigration and Migration) | UK
The decision maker must consider whether criminality which does not fall within paragraphs S-LTR. It is possible for an applicant to meet the suitability requirements, even where there is some criminality. If the applicant falls for refusal on the basis of suitability under S-LTR, the application will be refused. Partner or Parent- indefinite to remain applications In all applications for indefinite leave to remain as a partner or parent the decision maker must consider whether the suitability requirements in paragraphs S-ILR.
In considering the suitability criteria under paragraphs S-ILR.Questions Singles ask
To meet the suitability requirement for indefinite leave to remain under paragraph S-ILR.