Duncan Lewis

New policy guidance on the marriage visa 21

Date: (19 January 2012)    |    

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The UK Border Agency recently issued some new policy guidance, following a judgment by the Supreme Court that challenged parts of the immigration rules relating to foreign spouses and their sponsors in the UK. Formerly, since 2008, both had to be at least 21 years of age before the spouse could be granted leave to remain in the UK as a partner or spouse, or to obtain a visa to enter the UK as such.

The previous legislation was in part designed to combat what was seen as the increasing incidence of forced marriages in the UK. Whilst the Supreme Court recognised the good intentions of the Secretary of State for trying to address this problem in legitimate ways, such as raising the age limit from 18 to 21 in 2008, it also decided that the change to the age limit rule interfered in a disproportionate manner with people who were in proper marriages, and specifically with their rights under Article 8.

Some people are affected by this latest piece of legislation to a greater extent than others are. Those mainly affected are people who applied for entry to the UK or leave to remain here as an unmarried partner, same-sex partner, spouse, proposed civil partner or fiancé between November 27 2008 and October 2011. If they made the application to enter or remain between those dates and were turned down on the sole basis that they were aged between 18 and 20, the new legislation will have a direct bearing on their cases.

Whether the application was made from inside the UK or in some other country makes no difference, and the new guidance goes into some detail concerning how the previously failed application for a visa can apply to have the original decision reviewed, and a visa possibly now granted.

On November 7 2011 changes to the immigration rules were made by Parliament to reinstate the original, pre-2008 situation whereby the spouse, proposed civil partner, same-sex partner, fiancé or civil partner and his or her sponsor can remain in the UK or enter as long as he or she has a minimum age of 18 rather than 21.

To have their cases reviewed the closing date for an application is May 31 2012.

There are still a number of criteria laid down in the immigration rules that couples have to satisfy before the foreign spouse or civil partner will be given leave to enter and remain in the UK. Their partner must already be living and settled permanently in the UK or be in the process of returning there with the applicant to settle permanently. In the case of married couples applying to enter, they must be able to prove that they are legally married or are in a civil partnership that has been registered. They must also be able to convince the authorities that they have every intention of living together as civil partners or as husband and wife and that they have met one another, and there are different conditions that have to be satisfied for different categories of applicant from different countries.

If in doubt, consult Duncan Lewis or other immigration solicitors for comprehensive and expert advice on these and other immigration issues.