SAME-SEX RELATIONSHIPS & IMMIGRATION TO THE UKFor many years there was no provision for a British citizen or settled person to apply for his or her same sex partner to enter or remain in the UK on the basis of the relationship.
Common law spouses in heterosexual relationships were recognised in the immigration rules until 1985. However this provision was then abolished and replaced by a concession but again only in respect of heterosexual relationships.
In 1996 the gay rights organisation Stonewall sponsored an amendment to the Asylum and Immigration Bill introducing the concept of inter-dependant partners. However the government merely used the debate to announce the withdrawal of the concession in respect of common law spouses.
Campaigns by Stonewall, the Immigration Law Practitioners Association and the Joint Council for the Welfare of Immigrants and others, finally forced the Home office to consider the issue of common-law and same-sex partners being permitted to remain together in the United Kingdom.
On 10 October 1997, after the election of a new Labour government, a new concession was announced by the Under-Secretary of State at the Home Office permitting applications to be made by same-sex couples and unmarried partners.
THE GAY CONCESSION
The concession (not part of the immigration rules) allows unmarried heterosexual and gay partners to apply to join a partner who is either settled or in a category leading to settlement (for example work permit holders, citizens of the European Economic Area) or a refugee in the UK.
The concession states that the unmarried partner of a person who is settled, in a category leading to settlement or a refugee, may be given entry clearance by an officer at the British High Commission, Consulate or British Embassy abroad to come to join his or her partner.
It is also possible for people already within the UK, for example as visitors or students, to apply for further leave to remain under the terms of the concession. This application should be made with a carefully drafted covering letter to the Home Office Immigration and Nationality Directorate in Croydon. It is most important that such an application is made before expiry of current leave to remain as it may otherwise be refused merely on the grounds of "overstaying".
THE POLICY IN PRACTICE
There are five essential elements to the concession:
- The parties are legally unable to marry under United Kingdom law (other than by reason of consanguineous relationships or age). This could be because either party is already lawfully married or because they are not respectively male and female.
- Any previous marriage or similar relationship (by either partner) has permanently broken down. The guidance states that where a previous relationship has existed "they should be asked to specify how long ago the previous relationship was terminated, either by divorce or separation".
- The parties have been living together in a relationship akin to marriage, which has subsisted for two years or more. When the concession was first announced the requirement was of four years relationship prior to the application. However this was reduced to two years in 1999.
- The parties must be able to maintain themselves and any dependants adequately and without recourse to public funds and there must be accommodation for the parties and any dependants without recourse to public funds in accommodation, which they own or occupy exclusively.
- The parties intend to live together permanently.
FURTHER REQUIREMENTS
Applicants outside the UK must hold a valid UK entry clearance obtainable
from a British Diplomatic Post in the country where the applicant is living.
Applicants within the United Kingdom must have valid leave to remain and must not have remained in breach of the immigration laws
This type of application is considerably more difficult than a marriage application, as it is necessary to confirm with as much documentation as possible the length of the relationship, and that it is a permanent one.
DJ
WEBB & CO. & THE UNMARRIED PARTNERS CONCESSION
Due to the complex nature of such an application we advise persons making
such applications to take advice and obtain the assistance of a specialist
immigration solicitor.
Malcolm Bryant, DJ Webb’s specialist the Home Office "Unmarried Partners Concession" is a member of the Stonewall Immigration Law Group.
Stonewall is a national civil rights group working for legal equality and social justice for lesbians, gay men and bisexuals. It is a respected and effective campaigning organisation working with a growing network of sympathetic politicians and alongside many grass roots groups.
He also has considerable experience in applications to the High Court for Judicial Review.
E-mail mbryant@webbimmigration.com