Introduction

We have witnessed numerous changes made to the Immigration Rules in the course of the last 12 months, which we have discussed in our previous articles shared on our website under the Resources tab. Please refer to these articles for further guidance and details of these changes.

We also wish to draw attention to one of the most recent updates in the Immigration Rules Appendix FM, which changes the definition of unmarried partners, allowing more generous interpretation and application in cases under the partner visa route.

Statement of changes in the Immigration Rules (HC 246)

The Statement of Changes in the Immigration Rules (HC 246) outlines this change, which took effect on 31 January 2024. The Immigration Rules Appendix FM have already been amended to reflect this change.

Previously, the Immigration Rules Appendix FM defined a ‘partner’ as:

"(a) Spouse; or

(b) Civil partner; or

(c) Unmarried partner, where the couple have been living together in a relationship similar to marriage or a civil partnership for at least two years”

This meant that unmarried partners who were not living together, despite being in a relationship akin to marriage, were not meeting the definition of a ‘partner’ and fell short of meeting the requirements for a partner visa.

Unmarried partners who could not provide sufficient documentary evidence to show that they have been cohabiting for a period of at least two years faced the inevitable outcome of their visa being refused.

It is completely understandable that many partners who were in a genuine and subsisting relationship were not living together for various reasons, mainly due to cultural or affordability reasons. Often, the only way to meet this requirement was through a valid marriage or civil partnership.

However, as of 31 January 2024, the definition of a ‘partner’ has been updated as follows:

"(a) spouse; or

(b) civil partner; or

(c) unmarried partner, where the couple have been in a relationship similar to marriage or civil partnership for at least 2 years”

Further, for the purposes of the Immigration Rules Appendix FM, the definition of a 'partner' includes the applicant’s fiancée or proposed civil partner.

What does the new change to the definition of 'Unmarried Partner' mean to 2024 Partner Visa applicants?

It is clear from the updated version of the definition of a ‘partner’ that unmarried partners who have been in a relationship akin to marriage or civil partnership for at least 2 years could potentially qualify for leave to enter or remain in the UK without having to prove that they have been living together for a period of 2 years, or in fact at all.

It is essential for applicants to meet the rest of the requirements under the Immigration Rules Appendix FM, in particular those in relation to suitability, eligibility, relationship, financial and English language requirements in order to qualify for a visa under this category.

The new change in the definition of ‘unmarried partner’ is certainly more uniform and in accordance with various other applications based on a relationship with a partner, where the requirement for unmarried partners to have lived together for at least 2 years was removed. For instance, it is not a requirement for an unmarried partner applying as a dependant under the Skilled Worker Visa to show that they have lived together with their partner, if for example living together as unmarried partners is religiously and/or culturally forbidden in their country of origin. More information on this is available under the Immigration Rules Appendix Relationship with a Partner and the Home Office’s Guidance.

The change to the definition of an ‘unmarried partner’ means that partners will only need to show that their relationship is akin to marriage. What that means in general can be interpreted in various ways and it really depends on the circumstances of each individual case. We shall expect to see the UK Home Office’s caseworker guidance published in due course, which we anticipate it would shed light on this.

Although this is not a mandatory requirement, we would still recommend that those applying for leave to enter or remain in the UK as an unmarried partner to explain their position as to why they are not cohabiting with their partner. Whilst this change may reflect acceptance of various models of family structures in society at present, given that not everyone feels ready to commit to cohabiting with their partner whilst they are getting to know one another and building their relationship, it is still expected for the partners to show intention that they will start cohabiting, unless it can be demonstrated to the UK Home Office that there is a sufficient cause preventing the couple from living together, e.g. due to work opportunities or studies taking place elsewhere.

The rules in relation to those who are married or in a civil partnership remain the same. Equally, the same rules apply to unmarried partners, except that they are no longer required to have been cohabiting for a period of at least two years. They do, however, need to prove that their relationship is durable, genuine, and subsisting.

It is also worth noting that the Immigration Health Surcharge is set to significantly increase on 6th February 2024 from £624 to £1035 per year, therefore, we highly recommend that those partners who are now eligible to apply under the partner route to do so prior to this date.

To Conclude

Overall, the change of the definition for ‘unmarried partner’ to exclude the need for cohabitation appears to be quite positive, as we have seen times and times again that many couples could not previously meet the definition of ‘unmarried partner’ as they were not living together. Considering that marriage rates are substantially declining, and more and more people are opting to remain in a relationship, as opposed to getting married, undoubtedly this change is rather welcoming.

Author: Martina Ignatova