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Immigration law and same sex partnerships
Immigration
Immigration laws and rules are complex and you are urged to seek specialist legal advice if any of the following issues affect you.
EEC nationals are not subject to immigration controls and have the right to enter and stay in the UK under EC laws of free movement of labour.
Civil Partners
The Civil Partnership Act 2004 (‘CPA’) recognises certain same sex relationships registered overseas. These are set out in schedule 20 of the CPA, which will be updated to take into account any recent international developments in recognising same sex relationships.
The CPA confers on a civil partner who is a non-EEC national the same rights of entry to the UK as a married non-EEC national. You will be required to apply for entry clearance (‘visa’), which will be granted for an initial two year ‘probationary’ period. You will need to prove that the relationship is ‘genuine and subsisting’ and that there will be no recourse to public funds to maintain or accommodate you. After two years you can apply for indefinite leave to remain. Similar provisions apply to ‘proposed’ civil partnerships, except that entry clearance will only be granted for 6 months. If no civil partnership is registered within 6 months, then it is unlikely that the period will be extended.
The CPA contains special provisions in relation to the registration of a civil partnership in the UK where one of the partners is subject to immigration control (i.e. does not have indefinite leave to remain or is not an EEC national), and does not have prior entry clearance to form a civil partnership. In such circumstances you can only enter into a civil partnership if you have been given permission to do so by the Secretary of State in the form of a ‘certificate of approval’. Heterosexual couples are also required to obtain a certificate of approval, unless they intend to undergo a Church of England marriage ceremony.
The High Court in the case of Baiai and Others v SSHD (2006) recently upheld the legitimacy of certificates of approval but declared the Church of England marriage exemption and the government’s policy guidance of rejecting all applications with a limited right to remain, as incompatible with Article 12 (right to marry) and Article 14 (right to non-discrimination) of the European Convention of Human Rights. The policy has now been changed to enable all applications where leave to remain has not expired to be considered, but the preferential treatment for Church of England marriages remains. The decision in Baiai has been appealed to the Court of Appeal.
Non Civil Partners
Non-EEC nationals in a same sex relationship but who are not civil partners, and not proposing to become civil partners, are treated the same as unmarried heterosexual partners. You will be required to prove that you have been in a two-year relationship akin to marriage, and that there will be no recourse to public funds to maintain or accommodate the overseas national.
Partner of non-UK EEC nationals
If the sponsoring partner is not a UK national but an EEC national then under EEA Regulations 2006 the non-EEC national can apply to enter the UK as a family member of their EEA sponsor if there is a ‘durable relationship’. This has been interpreted by the UK government as meaning civil partnership or unmarried partners who have lived together for 2 years. ‘Proposed’ civil partners will continue to subject to immigration laws as set out above.
Asylum
Non-EEC nationals are entitled to apply for asylum if you can demonstrate that there is a well-founded fear of persecution, on the grounds of your sexuality, in the country that you would be returned to. If designated a refugee, you will initially be granted leave to remain for five years. If still requiring protection after five years you may be granted indefinite leave to remain.
In cases where a same sex partner faces expulsion and an indefinite or permanent separation from his or her partner some protection is also provided by Article 8 of the Convention which protects the right to private and family life.
Immigration laws and rules are complex and you are urged to seek specialist legal advice if any of the following issues affect you.
EEC nationals are not subject to immigration controls and have the right to enter and stay in the UK under EC laws of free movement of labour.
Civil Partners
The Civil Partnership Act 2004 (‘CPA’) recognises certain same sex relationships registered overseas. These are set out in schedule 20 of the CPA, which will be updated to take into account any recent international developments in recognising same sex relationships.
The CPA confers on a civil partner who is a non-EEC national the same rights of entry to the UK as a married non-EEC national. You will be required to apply for entry clearance (‘visa’), which will be granted for an initial two year ‘probationary’ period. You will need to prove that the relationship is ‘genuine and subsisting’ and that there will be no recourse to public funds to maintain or accommodate you. After two years you can apply for indefinite leave to remain. Similar provisions apply to ‘proposed’ civil partnerships, except that entry clearance will only be granted for 6 months. If no civil partnership is registered within 6 months, then it is unlikely that the period will be extended.
The CPA contains special provisions in relation to the registration of a civil partnership in the UK where one of the partners is subject to immigration control (i.e. does not have indefinite leave to remain or is not an EEC national), and does not have prior entry clearance to form a civil partnership. In such circumstances you can only enter into a civil partnership if you have been given permission to do so by the Secretary of State in the form of a ‘certificate of approval’. Heterosexual couples are also required to obtain a certificate of approval, unless they intend to undergo a Church of England marriage ceremony.
The High Court in the case of Baiai and Others v SSHD (2006) recently upheld the legitimacy of certificates of approval but declared the Church of England marriage exemption and the government’s policy guidance of rejecting all applications with a limited right to remain, as incompatible with Article 12 (right to marry) and Article 14 (right to non-discrimination) of the European Convention of Human Rights. The policy has now been changed to enable all applications where leave to remain has not expired to be considered, but the preferential treatment for Church of England marriages remains. The decision in Baiai has been appealed to the Court of Appeal.
Non Civil Partners
Non-EEC nationals in a same sex relationship but who are not civil partners, and not proposing to become civil partners, are treated the same as unmarried heterosexual partners. You will be required to prove that you have been in a two-year relationship akin to marriage, and that there will be no recourse to public funds to maintain or accommodate the overseas national.
Partner of non-UK EEC nationals
If the sponsoring partner is not a UK national but an EEC national then under EEA Regulations 2006 the non-EEC national can apply to enter the UK as a family member of their EEA sponsor if there is a ‘durable relationship’. This has been interpreted by the UK government as meaning civil partnership or unmarried partners who have lived together for 2 years. ‘Proposed’ civil partners will continue to subject to immigration laws as set out above.
Asylum
Non-EEC nationals are entitled to apply for asylum if you can demonstrate that there is a well-founded fear of persecution, on the grounds of your sexuality, in the country that you would be returned to. If designated a refugee, you will initially be granted leave to remain for five years. If still requiring protection after five years you may be granted indefinite leave to remain.
In cases where a same sex partner faces expulsion and an indefinite or permanent separation from his or her partner some protection is also provided by Article 8 of the Convention which protects the right to private and family life.
