Unmarried Partner Visa but living separately

[bsharrison12]

Hi all,

I'm looking for some guidance as I know that the rules have changed some what in the last week for leave to remain visas.

My current situation is that I am a British Citizen from birth and have lived in the UK all of my life. My partner is from the USA. We have been in a relationship for 2 years and after spending this time living apart we've decided we've had enough and it's time for her to take the leap to the UK.

We have never lived together although we have spent periods up to a month together when we visit which is typically every 8-10 weeks but we have plenty of evidence that our relationship has been existing for 2 years.

On the UKBA web page it now appears that it groups Unmarried/Same sex partner with spouse/civil partnership visas and that as long as you meet this criteria then you could apply. There is no longer a mention of a two year cohabiting requirement but simply just proof of a 'genuine and subsisting' relationship.

My thoughts on this would be that as there is now a 5 year probation period which consists of 2 x 2.5 year periods that this would be ample time for the authorities to weed out the imposters.

Any comments on this would be appreciated as both my partner and myself are very excited to start the process.

Ben

[Lucapooka]

Hi all,
There is no longer a mention of a two year cohabiting requirement but simply just proof of a 'genuine and subsisting' relationship.

That's because a partner has been previously defined in the general section of the FM appendix.

Definitions
GEN.1.2. For the purposes of this Appendix "partner" means-
(i) the applicant's spouse;
(ii) the applicant's civil partner;
(iii) the applicant's fiancé(e) or proposed civil partner; or
(iv) a person who has been living with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application,


And, from your frank admissions, there is very little chance that your LD relationship can be classified as living with the applicant akin to marriage for two years.

[bsharrison12]

Could you please explain why I spoke to the UKBA directly two days ago and the exact words were "as long as you meet all other requirements and can prove the relationship and regular visits you could apply".

I would like to believe each case is judged on a case by case basis and as we are both professionals. For my partner to leave her career temporarily just so we could cohabit for 6 months and me to reciprocate 6 months after that is just ludicrous. I can't believe for a minute that is expected of anyone. How is it expected for couples to have a future?

[Lucapooka]

I've just cited the immigration rules verbatim in response to your enquiry. That's how partners are defined with regard to the Family Migration appendix. Whoever you spoke to on the phone did not understand your question or was not sufficiently trained to answer your enquiry (as is common with the UKBA general enquiry callcentre). However, if you think you qualify you should make an application.

[bsharrison12]

How have you found that to be? I found the person to be very useful and she understood exactly what I was asking, I will call again to give clearly state my situation and ask their opinion once more.

May I ask what is your experience with UK immigration? I've seen many of your posts but I do not know your credibility level.

Maybe you could advise me on the process. Is each application assessed on a individual basis and not just simply discarded if all criteria aren't black and white? Are you aware of anyone in a similar situation that has been rejected and if so how did they move forward from there?

Thanks,

Ben

[Lucapooka]

May I ask what is your experience with UK immigration? I've seen many of your posts but I do not know your credibility level.

Who I am and the extent of my experience (or of anyone here for that matter) is not relevant. This forum is a commons where anonymous people make comments that are then subject to the scrutiny of others. Anything that is wrong or misleading can be challenged or corrected, often by citing the relevant rules and guidelines. You can wait for that to happen here in this thread (if, indeed, there is anything incorrect in my statements) or you can choose to seek professional advice. Good luck.

[bsharrison12]

Okay well thank you for your input.

[Casa]

Lucapooka has given you excellent advice, even though it may not be what you wanted to read. His 3,000+ posts on the forum, should have given you an indication of the depth of knowledge.
The 2 year rule is set in stone. It was originally introduced as a concession for those who were living together as man and wife, but whose national laws prohibited divorce. The Philippines is one example. It was later extended to couples who could prove, with documented evidence that they had been living together in a relationship 'akin to marriage' for a minimum of 24 months. The ECO would expect to see joint commitments that there would usually be with married couples...joint finance, bills in both names and either a joint mortgage or rental agreement etc. This concession is not and never has been, for boyfriend and girlfriend (however committed to the relationship) who visit each other regularly.
As much as you may want this application to succeed, unfortunately as is often the case, you have been given incorrect 'advice' from the UKBA information line. If you still feel you can apply outside of the Rules it would be wise to seek professional advice before you risk losing a substantial application fee.
You asked where couples who have been refused the UPV route go. Some get married and apply for a spouse visa, others apply for a visa in another category under their own merit...work or study...and others give up and continue a long distance relationship, or the UK sponsor relocates to their foreign partner's home country. A Unmarried Partner Visa probably comes under more scrutiny than any other visa category.

[bsharrison12]

Thank you for your comments Casa.

I will most definitely be pursuing this further and will be taking further legal advice in the coming months.

I'm lead to believe with the recent changes that there is potential for success and I will keep the forum updated.

[Casa]

There have been no changes in the new Regulations regarding co-habitation for an Unmarried Partner application. In fact, the new rules are tougher in general with no favourable new concessions. Consider the situation for couples who are already resident in the UK but living in different towns due to work or study commitments and have been in a relationship for more than 2 years. The foreign national partner is unable to switch visas for a UPV as they have not co-habited for the required 24 months, even though they may see each other on a regular basis.
Lukapooka's already pointed out where the regulations still include the 2 year co-habitation ruling. This requires the couple to live at the same address during this period of time.

[bsharrison12]

Yes I know. I believe the system to be thoroughly unreasonable which is why I intend to contest it.

I will be applying with the support of an immigration lawyer. I've also read that at a last ditch resort you could argue that it was against human rights (not that I would probably ever consider this but have you heard of that happening?)

Do you happen to know how the process would run? Would we get to an interview stage because I believe I have a valid argument on compassionate grounds which I feel I could portray in an interview but not so well on the interview form itself.

[Casa]

You would apply, wait for the refusal and then lodge an appeal. It's a lengthy process and article 8 - Human Rights wouldn't stand up. It could probably be argued that if you chose to marry, assuming you meet all the requirements for a spouse visa, you would be granted a visa.
This is the paragraph from the instructions to ECOs in the new Regulations regarding a UPV application which applies:

295A. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the unmarried or same-sex partner of a person present and settled in the United Kingdom or being admitted on the same occasion for settlement, are that:

(i) (a)(i) the applicant is the unmarried or same-sex partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement and the parties have been living together in a relationship akin to marriage or civil partnership which has subsisted for two years or more;

[bsharrison12]

What would your suggestion be for us from here?

How could we strengthen our argument?

[Lucapooka]

You have no argument. There are fixed conditions and, unfortunately, you cannot fulfil them. The UKBA are not in a position to doubt your commitment to your partner but that is not under scrutiny. You don't have the qualifications they are asking for if you expect to be issued with a visa or leave to remain.

[Casa]

I can't see that you can challenge this as you clearly don't meet the main condition of 295A in the Immigration Rules as you've visited each other but you've never lived together as a married couple. You would have to submit documents showing a joint address...bills, official documents, a joint lease or mortgage, with a paper trail proving co-habitation covering the whole 2 years...which you're unable to do. Bear in mind that couples who have been living together with supporting evidence but are short of the full 24 months, are refused a UPV, even if they have children together.
What will your argument be? That you feel the rule is unfair to a couple who have a long distance relationship due to work commitments? You would be joining a long queue at the moment of spouses, many who have children together, who now find themselves separated due to the sponsoring spouse not earning the minimum of £18,600 per annum...£24,000 with 2 children.
Although you may feel your boyfriend deserves to be granted a UPV due to the fact that you're in a committed relationship, you may need to consider whether you're committed enough to marry...after which if you meet the financial level you stand a good chance of success with a spouse visa application.

[bsharrison12]

Again, I appreciate your comments and I don't doubt them for a second but I have yet to see evidence these rejected individuals you speak of.

Call me a dreamer... infact call me what you like but the rules are made to be broken. If there is a will there is a way and I quite frankly will not adopt a defeatist attitude.

We are at the level in our relationship where we could happily marry however it would come at a substantial financial sacrifice and as something you only do once in life I feel I want to do it properly and not on the cheap as it were, which would then consequently mean that we'd be forced to live with relatives because housing funds had been spent on an arguably forced marriage!

I don't expect you to agree with any of this but I hope others read this and do not give up their hope like bizarrely your comments seem to encourage. I know you're going to argue that you are only being realistic but people come to this forum with broken hearts in search of support and guidance not to be knocked down with information copied and pasted from government websites which they will have no doubt read already of their own accord. They come here for real stories of real situation that have happened to real people!

[Lucapooka]

Good for you! Make an application and see what the wind blows in. If it's refused at least you can say you tried.

[Casa]

It would also be irresponsible to simply agree with what a member hopes to read. You've heard the saying "If you don't like the message, don't shoot the messenger"? I assumed you hadn't read the instructions to UKBA case workers in the new regulations, as you believed this was no longer a requirement. I wish you luck with your application outside of the rules and hopefully the legal fees will be money well spent.
By the way, official information is copied and pasted to avoid misinterpretation by members. I could copy and paste multiple examples from members posts asking for help after their UPV applications have been refused...but I wouldn't want to waste your time. If you do your own search of the forum you should find them.

[bsharrison12]

I agree that you should not provide false information but you didn't give me any additional information at all. I was more than aware that the 2 year requirement still existed in the 'immigration rules' section but is neglected to be mentioned on the 'can you apply' partners page so I was bringing this to your attention.

Please show me examples of people that have been rejected after applying whilst being in a long distance relationship. I have yet to see any evidence of such a thing. I've seen evidence of people being rejected but not because they could not provide evidence of the two years cohabiting.

[Casa]

I'm obviously not being of any help and have only told you what you already know. I'll leave you to wait for response from others.

[MPH80]

So - let's be clear - the website and the phone line are advisory only.

The rules are primary in all this.

Take my wife's case for citizenship - when she applied - the website referred to a requirement to have LIVED in the UK for 3 years. The people at the local 'check and send' type service said the same thing.

The rules, however, required the person to only have been present in the UK legally 3 years earlier.

So - we were able to apply for her citizenship almost immediately after ILR because that's what the rules said.

In your case - the website neglects to mention the 2 years akin to marriage - but the rules do. Rules win.

Of course - if you want to apply for the cost of that £800-odd - go for it.

[bsharrison12]

Thanks for your input Sage.

I am inclined to agree that yes the rules do win but I still find it hard to believe it really is as black and white as that. I would like to think for £850odd they'd take your application seriously and give it some further investigation and not just discard your application.

I've not heard of anyone in the same situation or similar to myself and my partner who have given it a go and failed. Once I hear that then I would potentially be willing to rethink our future plans.

I will most definitely be applying for this Visa towards the end of the year but with assistance of a lawyer to give us a fighting chance. You may be able to tell me if there are fees that are related to filing an appeal because worst case that may be a road we have to take.

[MPH80]

http://www.ukba.homeoffice.gov.uk/sitec ... ppeal-fees

+legal costs of course.

The reason you can't find examples is that probably the only people who apply and fail are those who fail to read and understand the rules - and few do that when they are going to drop the best part of a grand on a visa.

[MPH80]

Found you an unmarried refusal:

http://www.immigrationboards.com/viewto ... n+marriage

The difference here is that they WERE together for more than 2 years - but couldn't prove it.

You can see the ECO specifically looked for evidence they were cohabiting.

Edit: http://www.immigrationboards.com/viewto ... 731094e213

A second failure - this is similar to you - not living together for 2 years. No record of the result of the appeal.

[bsharrison12]

Okay, so those fees are lower than expected, which is one good thing I guess (knowing that I'll probably be paying them sooner or later).

You're right but A, no matter what there are enough people in this world that atleast a few have been stupid enough to try (like myself) and B, I'd expect at least a few others to be on here moaning about it just as I am but I've seen no evidence.

I've had several people PM who are in a similar situation and are possibly going to apply so the people are out there, they're just not sharing their experiences...

I'll be ringing the call centre again in the morning. Might even ask for something in writing.