Dear Mr Bassie,
I am in a long-term relationship with a British citizen but we are not married. I understand that I might still be able to apply for leave to remain here. I am hoping that you can assist me in explaining how I can do this.
For the purposes of answering this question, I am assuming that you are currently in the United Kingdom (UK) and it is from there that you would like to apply for leave to remain as a partner of a British citizen or a person who is settled there.
If the person making the application for leave to remain was previously granted leave to remain and this was as the partner of a former points-based system migrant who is settled in the United Kingdom and was granted settlement as a points-based system migrant; or if he or she has British citizenship, having been granted settlement as a points-based system migrant, then the prospective applicant would not need to apply for further leave to remain in a partner category, instead, that person can apply as a dependent under the relevant category of points-based system on the application form points-based system dependent. If the eligibility can be established, then he or she can apply for settlement on the form SET(O).
It should be noted that if a person made an application to enter or remain in the United Kingdom on or before July 8, 2012, then this would be processed differently. A person who applies after July 9, 2012, will be assessed under Chapter Eight Appendix FM of the Immigration Rules. This is the section of the immigration directorate instructions that is about family members.
The Appendix FM provides two routes to settlement for partners. There is a five-year route and a 10-year route. The five-year route is for those who meet all of the suitability and eligibility requirements of the Immigration Rules at every stage. It should be noted that if a person applies but he or she cannot meet all the requirements for this category, then that person's application will be refused.
The 10-year route is for those who do not meet certain eligibility requirements but where paragraph EX.1 of Appendix FM applies. Paragraph EX.1 only applies to those who are in the United Kingdom who are applying for leave to remain. (Paragraph EX.1 sets out the criteria to be applied in assessing whether to grant leave to a family member on the basis of their family life with a child in the United Kingdom.)
For a person who is seeking to use the five-year leave-to-remain partner route, he or she must show that he or she and his or her partner are both aged 18 years or over at the date of application; that the partner is a British citizen, or is present and settled in the UK, or is there with refugee leave or humanitarian protection. It must also be shown that the applicant's partner is not related to the applicant in any way. That means he or she could not marry under UK law; that the applicant and the partner should have met in person; and the relationship with his or her partner is genuine and subsisting.
If the parties are married or in a civil partnership, then the marriage or civil partnership should be valid in UK law; however, if he or she is not married or in a civil partnership or have been living with his or her partner in a relationship akin to marriage or civil partnership, this should be for at least two years prior to the date of the application.
The applicant must meet the suitability requirements; any previous relationship has permanently broken down but it should be noted that this does not apply to certain polygamous relationships; the applicant and his or her partner intend to live together permanently in the UK; must meet the financial requirement; he or she must meet the English language requirement; and must meet the immigration requirement.
If the applicant meets all these requirements, he or she may be given permission to live in the UK for two and a half years. After that time has lapsed, he or she can then apply to stay for a further two and a half years if he or she meets the requirements. After five years, if the applicant meets all the requirements, he or she can apply for settlement.
PERMISSION TO STAY
If the applicant does not meet all the requirements for the five-year route, he or she may be given permission to stay in the UK on the 10-year family route to settlement if he or she meets the requirements.
For the 10-year leave-to-remain partner route, this route is only available to applications made from within the UK. The applicant must show that in addition to the above-mentioned criteria, the applicant is not in the UK as a visitor or with leave granted for a period of six months or less unless that leave is as a fiancÚ(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceeding(s) and there are insurmountable obstacles to family life with the applicant/partner continuing overseas.
If the applicant meets all these requirements, he or she may be given permission to live in the UK for two and a half years. After that time, if you meet all the requirements, you can then apply to stay for a further two and a half years. After 10 years, if the applicant meets all the requirements, he or she can apply for settlement.
It should be noted that even if a person met the requirements described above, the British authorities may refuse the application for other reasons such as one's previous immigration history.
John S. Bassie is a barrister/attorney-at-law who practices law in Jamaica. He is a justice of the peace, a Supreme Court-appointed mediator, a fellow of the Chartered Institute of Arbitrators, a chartered arbitrator, and a member of the Immigration Law Practitioners Association (UK). Email firstname.lastname@example.org.