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MAKING AN APPLICATION FROM WITHIN THE UK
When should I make the application?
It is essential that you make the application before your current
leave
to enter or leave to remain expires. Your passport should have in
it a stamp given to you when you last entered the UK or applied to the
Home Office for an extension. It will either say that you have been
granted leave to enter or remain until a specific date or it
will say that you have been granted leave to enter for a specific number
of months (e.g. six months). If you were last granted entry for a specific
period of months you need to calculate carefully when the time will be up.
When you are certain of the date that your leave to enter or remain
expires make sure that your application is at the very latest sent to the
Home Office by Recorded or Special Delivery on the day before. So long as the
application is received by the expiry date you will have the right to
appeal to an immigration court if the Home Office decide to refuse your
application. It is very important to have this right of appeal and it will
be lost if your application reaches the Home Office even a day late.
However, we do not recommend leaving it to the last minute to submit your
application. If there is anything wrong with it (e.g. you forget to sign
it or payment fails because your credit card is not authorised) they will send it back as an invalid application.
There is, therefore, good reason to submit it one month before your leave to enter/remain expires.
If you are already what is known as an overstayer or you are an illegal entrant
the next three paragraphs are very very important.
Newsflash - Proposed changes to the
'general grounds for refusal' were announced by the Home Office on
6th February, 2008 and are due to come into force on 1st April, 2008. It is proposed that anyone who has breached UK
immigration laws, unless overstaying for less than 28 days, will be refused future entry
for a period of at least one year (if they left UK voluntarily at
their own expense), up to 10 years (if they were removed or deported
or have used deception in an application). See
statement of changes page 36 paras 7.23 to 7.26.
There was no consultation process prior to this proposal but
urgent discussions have taken place with the Home Office and with
ministers. As a result, during a debate in the House of Lords on
17th March, 2008, a concession was announced that the provisions (in
new paragraph 327B of the Immigration Rules) will not apply to
anyone currently in the United Kingdom who leaves the country
voluntarily before 1st October 2008. See also
civil partnership.
After that date, refusal of entry clearance was to be mandatory for
periods of up to 10 years with appeals only possible on
human rights or asylum grounds.
A further very important amendment (for civil and unmarried
partners) was announced, however, by Liam Byrne in the House of
Commons on 13th May, 2008. The Immigration Law
Practitioners Association (ILPA) should be congratulated on the
hard work and patient dialogue which secured this concession:
"First, we will not automatically refuse applications from
people applying to join their family permanently in the UK—that
is to say, those applying for visas as a spouse, civil partner
or unmarried or same-sex partner under paragraphs 281 or 295A of
the immigration rules; a fiancée or proposed civil partner, as
set out in paragraph 290 of the rules; a parent, grandparent or
other dependent relative, as set out in paragraph 317; a person
exercising rights of access to a child, as set out in paragraph
246; or a spouse, civil partner or unmarried or same-sex partner
of a refugee or person with humanitarian protection, as set out
in paragraphs 352A, 352AA, 352FA and 352FD. Following some of
the comments made by hon. Members this evening, I will of course
check to see whether we have cast the scope of those exceptions
correctly, but my initial analysis is that that is where the
discretion should apply.
Secondly, we will not automatically refuse anyone who is under
the age of 18 at the time of the breach of the immigration
rules. My hon. Friend the Member for Islington, North spoke
powerfully on this subject, as did the hon. Member for North
Southwark and Bermondsey. That case has been well made.
...As to the caveats, this does not mean that people who need to
go home and reapply will automatically get in; they will still
need to meet the requirements set out in the immigration rules
and they may be refused if they have contrived in a significant
way to frustrate those rules. Nor is it or can it be a green
light for the groups I have mentioned to deliberately overstay."
Warning:-
Just because you have a stamp in your passport does not necessarily
mean you are lawfully here. If you told any lies in order to obtain the
stamp you could be declared an illegal entrant who had only obtained
permission to enter or remain by deception. If you did tell any lies in
order to obtain your last permission to enter or remain you should obtain
legal advice immediately.
If you currently have leave to
remain, for example as a student, and it is not due to run out for a few
months you may be considering taking a holiday and returning to the UK
before the expiry date of your student visa. You should be aware that when
you seek to re-enter the country the immigration officer will want to be
satisfied that you are still a student and that you intend to return to
your home country at the end of your studies. Clearly if you intend to
apply to extend your stay under the unmarried partners rule you will no
longer qualify to re-enter as a student.
If you must travel you should get
advice beforehand about how this will affect your immigration status and
any future plans you may have.
Are
there restrictions on switching visa categories ?
We have heard, periodically, of inaccurate information being given to
visitors (and telephone callers) to the Public Enquiry Unit in Croydon on
switching to unmarried partner status. As a result, in August 2004, we
obtained written confirmation from the IND Policy Unit via the Immigration &
Nationality Enquiry Bureau (INEB) - as follows:
"Persons with short term leave in the UK are not prohibited from
applying for leave to remain as the unmarried partner of a person
present and settled here.
Applicants must meet all of the requirements of paragraph
295(D) of the Immigration Rules. This includes that they are legally
resident in the UK."
To clarify, it is possible to switch to unmarried partner in-country
from a temporary visa category such as student or even visitor. This is in
contrast to those switching to married or civil partner status who cannot switch within the UK if the
current visa is for 6 months
or less (this restriction can be seen in the rules in para 284 (spouses or
civil partners),
but NOT in para 295D (unmarried partners)).
The Rules also state that switching in-country is not possible for the unmarried partners
of sponsors "in a category leading to settlement" who have limited leave to
remain in (or enter) the UK. This includes those in the UK for
employment, self-employment, investors, composers, writers, artists, those on
ancestry visas and retired persons of independent means.
INEB refers specifically to
paragraphs 128-193; 200-239; 263-270 in the Rules and confirms that
unmarried partners of sponsors (with limited leave) in those categories must have prior entry
clearance.
We do, however, recommend that anyone in this second category seek legal
advice as we are aware of such switches being allowed in certain
circumstances as a concession outside the rules.
Should I use a solicitor to make the application?
If your application is straightforward and you meet all the criteria
then it is possible to apply without the use of a solicitor. However many
of our members make applications through solicitors, because immigration
law is a complex area and it is worthwhile having the advice and
assistance of a competent solicitor who specialises in immigration law.
You should only instruct a solicitor who specialises in immigration law. A
number of such solicitors work closely with the Group. Please see the
Solicitors
page on this website or phone the
information
line or the administration office for
details.
Solicitors come to our
monthly information meeting which is a good opportunity to meet them and
to speak to other group members who can make their own recommendations.
Solicitors usually charge by the hour and you should ask what the hourly
rate is in advance and for an estimate of how long it is likely to take
the solicitor to make your application. You may decide that your
application is straightforward enough not to require the assistance of a
lawyer. It may nevertheless be worthwhile instructing a solicitor to look
over your application and to briefly advise you as to whether or not it
has been adequately prepared.
The hourly rate for solicitors varies
depending on location, the seniority of the solicitor within the firm and
the type of firm that you are instructing. A commercial law firm based in
the City of London will charge more than a local high street firm. Cost
should not be considered an indicator of quality.
You may be entitled to free legal
help from solicitors who have a contract with the community legal service.
In December 2001, the income and capital limits for the legal help scheme
were increased. Any individual or couple with a gross monthly income of
less than £2,000 and capital of less than £3,000 may be eligible
although 'disposable' income must not exceed £601 per month. Allowable
deductions from gross income include mortgage payments up to a maximum of
£545, income tax and NI contributions, employment expenses up to £45 and
an allowance of £131.25 for a couple. The couple's interest in their main
residence should not exceed £100,000 after deduction of any mortgage (up
to a maximum of £100,000). Full details/calculator can be found
at the Legal Services
Commission website
Do I need to pay a fee to make the application?
Yes, see
Fees table from 2nd April, 2007
Currently there is still no charge for applications by the unmarried partners of EEA
nationals (applying on form EEA2) but such applications cannot be made in
person.
Is there a form to be filled in?
Yes. To make the application you need to complete a form called
FLR
(M). This form is for people who wish to apply for an extension of stay as
the spouse, civil partner or unmarried partner of a person present and settled in the UK.
Forms can be obtained from the Home Office by telephoning 0870 241 0645 or
from the Internet by clicking the link above.
The form asks for you to give the name, date of birth, nationality and
address of both applicant and partner. You need to state how long the
partner has lived in the UK. If the applicant has dependent children who
you want to include in the application give full details.
The form then asks a series of questions:
5.4 When did you first meet?
5.5 Where did you meet?
5.6 When did you decide to live together in a relationship akin to marriage?
5.7 When did you start living together?
The form asks about your accommodation and source of income. You should
not be claiming any welfare benefits and you should not be working unless
you currently have permission to do so. The only people who are likely to
have permission to work are those here on work permits, commonwealth
working holidaymakers and students. If you are not working and are
dependant upon money given to you by your partner you should indicate this
by ticking the yes box where it asks whether a friend or relative gives
you money.
The form ends with declarations which must be signed by both
the applicant and the partner.
Warning:-
The forms are only valid until a particular date. You should ensure that
you do not submit an out of date form.
You should complete the form in black ink and capital letters as
requested on the front of the form. Failure to do so has in the past led
to some applications being rejected.
What documents do I need to submit with the form?
The form lists all
the documents you must submit for it to be a valid application. Read the
list carefully and tick what you are sending.
You must submit the
originals (unless you have a copy certified by the issuing authority) of
the following documents:-
a. A passport sized photograph of both the
applicant and the partner (and any dependents) with the name written on
the back which should be stapled to the front of the form where required.
b. A valid passport for the applicant.
c. Some nationalities are required to
register with the police in certain circumstances and are issued with a
green police registration certificate.
d. The passport of the
British/European or settled partner. If a British partners passport is not
available, you can submit a full British birth certificate plus one formal
document from a specified list showing ordinary residence in the UK for
the last three years.
e. Evidence of your ability to accommodate and
maintain yourself without recourse to public funds. This should take the
form of the original bank statements for any sole or joint account held by
either you or your partner. You must send the last three months worth of
bank statements. You should also send three months worth of payslips for
you and/or your partner if either or both of you are in employment. If you
are being supported by your partner or any other friend or relative you
must provide a letter from them confirming that they support you and are
willing to continue to support you and evidence that they are capable of
doing so.
What evidence should I obtain to prove my relationship?
Remember that there are no mandatory documents that you must have to
prove your relationship. The caseworker will take a broad view of whatever
evidence you submit.
We suggest that your evidence should comprise the following: -
1. Testimony of you and your partner
This is your written evidence that you and your partner have been in a
relationship as claimed. You can either write a joint letter signed by you
both or you may choose to write two separate letters.
We suggest that the letters should provide a chronological history of
your relationship. The letters should set out:
a. Where and when you met.
b. When the relationship started.
c. When and where you have lived together, explaining the reasons for
any periods of separation.
d. A flavour of what you do together.
e. Conclude with confirmation that you are living together and intend
to live together permanently.
2. Testimonies from friends and family.
You should ask friends and family to write short letters supporting the
application. These should say who they are, their relationship to you,
confirm how long they have known you to be in a relationship and give a
few examples of times when they have been together with you as a couple
particularly visits that they have made to your home (they should indicate
where they visited you).
They should conclude with a comment as to the strength of your
commitment to one another. There is no firm rule as to how many of these
letters you should obtain. If you have a mass of other evidence (see
below) you will not require many letters of support. If however, you have
very little other evidence letters of support are vital.
Notwithstanding the above, please refer to the separate
Evidence page
regarding the current Home Office attitude towards letters of support.
3. Documentary Evidence of cohabitation.
If you have lived at more than one address together you should separate
your evidence accordingly. For each address the evidence should be
compiled chronologically from the earliest date until the present. It
would assist if you compiled an index of the documentation that you are
submitting.
The purpose of this documentary evidence is to show that you were both
living at the same address during the periods claimed. Clearly, any
document you have in joint names (such as joint bank account statements)
should be included. Otherwise you should include a balanced sample of
documents in your name covering the last two years together with a similar
number of sample documents in your partner’s name.
Typical documents include correspondence from the utility companies
(e.g. British Gas), local councils, (e.g. Council tax bill), doctors (e.g.
NHS medical cards), banks, building societies, insurance companies, Inland
Revenue, Department of Social Security, and any other organisation that
has ever written to you (including UKLGIG/SIG).
It is also worth submitting post-marked envelopes/ postcards from
friends or family addressed to you, your partner or both of you.
4. Documentary evidence of commitment to the relationship.
This may include a will showing your partner to be the beneficiary, a
pension or death benefit scheme of which your partner is the beneficiary,
any joint financial arrangements, including your partner on your driving
insurance, your partner as an authorised signatory on your
credit card account, joint membership of health club, etc.
Don’t worry if you do not have all of these. They are only examples
of what you may be able to show as evidence.
5. Non-documentary evidence of the relationship.
This may take the form of personal letters, Valentines Day cards,
anniversary cards, etc that may have passed between you during the
relationship, but you shouldn’t feel an obligation to share
correspondence of a very personal nature with the Home Office.
You may also wish to submit some photographic evidence (compiled
chronologically with written description) showing you together during the
relationship particularly photos of you at your home, on holiday or with
friends and family. If you have travelled regularly during the last two
years on holiday you may want to submit evidence that you travelled
together.
6. Evidence of contact during periods of separation.
You should include any letters or cards or e-mails to show that you
were in regular contact during periods of separation. If you spoke
regularly on the telephone you should obtain the telephone bills for the
periods in question and highlight the calls to one another. If you were
visiting each other on a regular basis for short periods it would assist
if you prepared a summary of the dates that you were together in
chronological order which could be verified from stamps in you and your
partner’s passport or through travel receipts.
How should I present my application?
You should try to get all the documentation into one lever arch file or
box file. You should present your evidence in a way that it is easy for
the Home Office to read. They are under considerable pressure of time and
you should therefore prepare an index and separate your documents under
the headings suggested above using dividers, etc.
There is no magic formula to how you present your evidence – use your
common sense.
Where do I send or take the application?
Some people will hand in the application they have prepared to their
solicitor who will submit it on their behalf with a covering letter
explaining why the application should qualify under the Rule and
addressing any problems raised by the particular case.
If, however, you intend to submit the application yourself see
Applying in person at a Public Enquiry Office
Briefly, you should send it by recorded or special delivery post to:
Border & Immigration Agency,
Leave to Remain - FLR(M)
PO Box 495
Durham
DH99 1WR
If your application is urgent you may take it to the Public Enquiry
Office (PEO)
at Lunar House, 40 Wellesley Road, Croydon CR9 2BY or to one of the
three regional PEOs
in Glasgow, Liverpool or Birmingham. Addresses of the
regional offices are on
page 6 of the form
FLR
(M). The premium same-day service fee will be payable.
All the PEOs now operate by appointment only. To make an appointment at Croydon PEO, please call
0870 606 7766.
Details of the procedures at all the PEOs can be found
here.
Non-EEA partners of EEA citizens are not able to use the same-day
service unless the EEA citizen is settled (i.e. has indefinite leave to
remain - permanent residence)
in the UK.
IMPORTANT NOTE: You should keep a copy of every page of every document
you submit and your Recorded Delivery or Special Delivery receipt in case
the documentation goes missing at the Home Office.
How long will it take for my application to be considered?
If your case is straightforward and well documented it may be dealt
with by the initial consideration unit and returned within one month.
However if further enquiries or more extended consideration are necessary
before a decision can be reached, the application will be allocated to a
Case-working Group at the Home Office. Each group has a queue of work to
be dealt with. Your case will be placed in this queue.
Applications placed in this queue on average take 3 months to be
decided although some can take longer.
What are my rights whilst I am waiting for a decision?
So long as you have made the application before your leave to
remain/enter expires, you continue to be legally in the UK until such time
as a decision has been taken and 28 days thereafter if it is refused. If
you had permission to work before you made the application you will
continue to have this permission to work whilst the application is being
considered. If you did not have permission to work when you made the
application this continues to be the case until you receive a positive
decision.
Can I travel outside the UK whilst my application is being considered?
No. If you request the return of your passport your application will be
considered to be withdrawn. You will be expected to leave the UK within 28
days of withdrawing your passport. If you want to re-enter the country you
will have to persuade the Immigration Officer that you are entering for a
purpose covered by the immigration rules.
If you sought to re-enter in order to continue with your application
you would be refused entry. You would be expected to re-apply in your home
country for entry clearance.
If you found yourself in a situation where you needed to travel because
a relative was seriously ill and the Home Office had not decided your
application it may be possible to persuade them to decide your application
immediately. Alternatively, they may give you what is known as a travel
extension. They will normally only give this if your application has not
been decided within three months. A travel extension is a stamp giving you
three months leave to remain in the UK and so long as you leave and return
within that three month period you should normally be granted re-entry by
the Immigration Officer and you can then re-submit and resume your
application. If you need a travel extension we suggest that you instruct a
solicitor to make such an application.
What happens if my application is refused?
Your application will probably be refused if you do not meet the two
years requirement or if the Home Office has any doubts that your
relationship is a genuine one. You may also be refused if you cannot
satisfy the Home Office that you are able to accommodate and maintain
yourself without claiming welfare benefits. So long as you applied before
your leave to enter/ remain expired you will have the right to appeal to
an immigration court against the decision. If you were not lawfully here
when you made the application the Home Office will probably go on to make
a decision that you should be removed from the UK. You can appeal against
this decision but only on the grounds that removal would breach your human
rights or you would face persecution in your home country.
Any appeal must be lodged within 10 days of receiving the decision.
You should instruct a lawyer to advise and assist you in respect to
this appeal. If you are unable to find a lawyer within the 10 days you
should complete and submit the appeal form as fully as possible
yourself. If you do not want to return to your home country because you
fear persecution or because your human rights will be breached you must
specify this in the appeal form (see
Asylum). You should request an oral hearing of your appeal
and you should receive a date for your appeal hearing within 6 months of
the decision.
What happens at an immigration court hearing?
An Immigration Adjudicator who is independent of the Home Office hears
your case. They can allow your appeal if persuaded that at the date of the
decision you met all the criteria of the Rule or the refusal breaches your
human rights or you qualify for asylum. This area of law is complex and
you are strongly advised to have legal representation. The Adjudicator
does not make a decision on the day of the hearing but writes a fully
argued written determination, which normally follows within 1-3 months. If
the Adjudicator makes an error of law in the determination you can appeal
to a higher Court called the Immigration Appeal Tribunal.
Whilst you are appealing you are entitled to remain in the UK for as
long as the appeal process takes. Technically there is no prohibition on
you taking employment or setting up in self employment during this period
but you may have difficulty in persuading an employer that they can
legally employ you unless you previously had permission to work.
What happens if my application is successful?
You will be given a stamp in your passport giving you permission to
remain in the UK for a two-year period. During this two years you are free
to take employment, set up in business, study or do whatever you want. You
are free to use the National Health Service. You are not allowed to claim
any welfare benefits. You are free to travel in and out of the country.
Each time you re-enter the country the immigration officer will want to
know that you are still living with your partner and meet the other
conditions of the Rule and so long as this is the case you will be granted
re-entry to complete the two year period.
What happens at the end of the two-year period?
Shortly before the two-year period is due to expire you can apply for
settlement (otherwise known as indefinite leave to remain or permanent
residence). You have to complete a form called
SET
(M), which is similar
to the form
FLR
(M).
You will need to submit evidence to show that you have been living
together with your partner for the preceding two years and that you intend
to live together permanently in the future. You will also need to submit
evidence to show that you can accommodate and maintain yourself without
claiming public funds. In essence it will be similar documentation as
before without the need to obtain letters from third parties.
From April 2007, anyone applying for Indefinite
Leave to Remain in UK is required to pass the
"Living in the UK" test first.
Details.
Once you have obtained settled status you are entitled to live
permanently in the UK and you do not have to apply for anymore extensions.
You will be treated as a resident of the UK so long as you do not leave
the UK for a period of more than two years and satisfy the immigration
officer that the UK remains your country of residence. Once you have had
settled status for 12 months and have lived in the UK for a continuous
period of five years you can apply to be naturalised as a British citizen.
You do this by completing
form AN available from the
Managed Migration
Directorate of the Home Office in Liverpool.
What happens if the relationship breaks down during this two-year
period?
If your relationship breaks down you will not qualify for settled
status under the unmarried partner’s Rule. You should take legal
advice to see whether there are any other options within the
Immigration Rules that might allow you to continue living in the UK.
If, however, your relationship breaks down due to proven domestic
violence by your partner (e.g. where it has been reported to the police
and they have either charged or cautioned your partner) you may be
entitled to indefinite leave to remain in any event. Similarly, if your
partner dies during the two-year period and you were still together at the
date of death you can apply for settlement under the bereaved partner
Rule.
Partners of EEA Nationals
To avoid too much duplication, please see Civil Partnership
Partners of EEA
citizens which contains an explanation of the differences between those
in "durable relationships" (such as unmarried partners) and civil partners
and the process and time necessary to obtain permanent residence, by this
route.
BIA pages:
Rights of
EEA or Swiss family members to live and work in the UK (BIA)
Making
applications under European law, including EEA forms (BIA)
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