Unmarried Partnership - The two year rule

northcave · Post by **northcave** » Wed Mar 30, 2011 12:40 pm

Hello, my partner and I have been seeing each other for 2 years and due to circumstances only have been living together for 19 months. I was basically living in a different city and needed time to move to Bristol.

I am a British national and my partner has been in the UK for 9 years and is a qualified architect.

The rules say unmarried partners must be living together for 2 years and goes on to say:

"If you did not live together for any part of the 2-year period, tell us the reasons for this and whether you stayed in contact with each other during this time, and provide any relevant supporting evidence"

Since we were unable to live together initially but did so as soon as it was feasibly possible would this be rejected or legitimately considered?

We have proof of relationship in terms of holidays, family, friends, joint accounts, bills etc and she has been in the UK for 9 years already as i have stated.

What are your thoughts on this? I would assume the 2 year rules it a fixed box to tick, but there comment suggest it is open to discretion. Note that her current work visa expires on April 20th and since the salary rates for Tier 1 are so high compared to the current market rates for Architecture in this recession, this is why we are exploring this avenue rather that the current Tier 1 visa she is currently on.

Many thanks for any help.

Tim

Post by **Casa** » Wed Mar 30, 2011 2:11 pm

The concession to a gap within the 2 years is for those who are apart for a brief period for work trips/compassionate reasons etc. A time apart before the clock starts ticking for the 24 months isn't considered. Sorry.

Post by **MPH80** » Wed Mar 30, 2011 2:32 pm

It might be helpful if you listed all the visas your partner has had to see if she might be eligible for ILR.

Post by **Casa** » Wed Mar 30, 2011 3:03 pm

Good point.

northcave · Post by **northcave** » Tue Apr 05, 2011 7:21 pm

MPH80 wrote:It might be helpful if you listed all the visas your partner has had to see if she might be eligible for ILR.

Apologies for the delay. Ok so basically she started on a student visa in 2002. Then to a post study work visa which has just expired. Her 10 years without a break is reached in September 2012. She cannot get into the Tier 1 General since her Architects salary does not reach 36k.

Also she can't reach the code of practice salary for Sponsorship for an Architect at 29k simply because the construction industry is very deflated due to the recession and all newly qualified architects are not being paid what the code of practice suggests.

Anything you could suggest would be appreciated.

Tim

Post by **Greenie** » Tue Apr 05, 2011 8:55 pm

You said her visa has expired? Earlier you said it was due to expire on April 20th?

northcave · Post by **northcave** » Wed Apr 06, 2011 2:09 pm

Greenie wrote:You said her visa has expired? Earlier you said it was due to expire on April 20th?

Sorry I was meant to say "just about to expiry". It does expire on the 20th.

Post by **Greenie** » Wed Apr 06, 2011 10:49 pm

The generally accepted consensus (and the ukba position) is that both the relationship and the living together must have been in existence for 2 years

However the wording is ambiguous and open to interpretation and I am aware of recent cases where judges have found that it is the relationship and not the cohabitation which needs to have existed for 2 years or more due to the way the clause is worded,

"the parties have been living together in a relationship akin to marriage which has subsisted for two years or more"

Having said that it would be very diffiult to prove a relationship akin to marriage had existed for more than two years without showing evidence of cohabitation. What evidence do you have of your relationship before you started living together? Did you stay at each other's houses regularly?

It may be worth putting in an application and hoping that by the time the UKBA refuse (which they probably will) and it gets to appeal you will be even closer to the two years and a judge will look at things more favourably.

northcave · Post by **northcave** » Thu Apr 07, 2011 9:18 am

Thanks for this. Very interesting.

May I ask, if the application does fail will it make things much more difficult for her to return to the Uk later whether it be on a holiday visa, spouse or something else?

Also have you the names of the cases which have been accepted based on 2 years relationship rather than 2 years cohabitation?

Thanks again

Tim

Post by **Greenie** » Thu Apr 07, 2011 9:54 am

It's the top one on this list

http://www.ait.gov.uk/Public/unreportedResults.aspx

Case number IA/12166/2010

Unfortunately the determination is unreported and in addition because the couple had been living together for more than 2 years by the time of the determination the judge's comments on the meaning of the rule are Obiter however it is still worthwhile making the application and making the argument as long as you can show that you have been together in a relationship akin to marriage for the two years.

Regarding whether a refusal will effect her chances of getting visas for the UK in the future, if she was refused settlement for the reasons discussed and then subsequently applies for a visit visa it would likely be refused as the ECO would not be convinced of her intention to return. However I don't think it would effect her prospects of getting a spouse visa if you subsequently marry.

Post by **MPH80** » Thu Apr 07, 2011 10:48 am

Greenie - that link doesn't work. Takes you to a 'results not found' page.

On the subject of the relationship akin to marriage - this is the key point. UKBA have been using living together as the marker for that - and if that's going to change then you'll have to think about what else marriage means.

It means commitment - potentially joint finances, joint purchases (sharing a car?), children you look after equally etc.

To argue that (for example) a couple who perhaps shared a first kiss and saw each other once/twice a week for a few weeks were in a relationship akin to marriage would be rubbish. So you need to carefully think about whether your relationship really was or not for that time period.

M.

Post by **Greenie** » Thu Apr 07, 2011 11:05 am

try this link.

http://www.ait.gov.uk/Public/Searchunreported.aspx

type in 16/12/2010 and it is the first on the list.

i agree that without cohabitation it can be difficult to prove that the relationship is akin to marriage however the law as strictly interpreted does not require the cohabitation to have lasted for two years. I think it is easier to prove in a relationship that has lasted a lot longer before the cohabitation began however

The OP's best chance in reality if he wants to go down this route is to apply and hope that by the time the appeal comes round the cohabitation will have lasted for two years.

northcave · Post by **northcave** » Thu Apr 07, 2011 12:14 pm

Greenie wrote: The OP's best chance in reality if he wants to go down this route is to apply and hope that by the time the appeal comes round the cohabitation will have lasted for two years.

Can you approximately tell me how long the process takes? I have been given a lot of different advice on timescales but roughly I have been told:

Application: 4-8 weeks
Period to appeal: 2 weeks
Time until Appeal hearing: Up to 4 weeks

northcave · Post by **northcave** » Fri May 27, 2011 12:41 pm

Ok here is the update. My partner submitted a student visa application to complete her degree. Architecture degrees have 5 parts. 4 to qualify and a 5th as a dissertation on research. The research obviously needs to be in the country she studied to be valid.

Anyway they just refused the application as the certificate from the university was not present even though she has a sign letter confirming the acceptance.

We're not wondering if the unmarried parter visa is a valid option if she returns home and applies? By the time she returns we'd have been living together for 23 months. Providing we prove the relationship is still going could she apply on August 1st (when she moved in with me) from outside the UK?

Technically everything is valid but i wonder if the 30 days she is in the Philippines without me would constitute as a break in the two years even if she is still technically paying rent here etc.

Thoughts appreciated?

Post by **geriatrix** » Fri May 27, 2011 1:09 pm

Has she been granted the right to appeal the refusal of Tier 4 leave to remain application? When was the refusal received?

northcave · Post by **northcave** » Fri May 27, 2011 2:24 pm

sushdmehta wrote:Has she been granted the right to appeal the refusal of Tier 4 leave to remain application? When was the refusal received?

Yes she has to option to appeal. Her application was refused 23rd May.

Thanks

Post by **geriatrix** » Fri May 27, 2011 2:44 pm

Thinking aloud:

So, if she appeals then she can continue to remain in the UK legally under section 3C until all appeal options are exhausted.

Assuming that the appeal may not come up for hearing before such time that you two complete 24 months of cohabitation, then she can withdraw the appeal as and when you reach that stage, return to home country (submit request to withdraw appeal in writing on the day of departure from UK) and apply for UPV there.

Greenie / vinny - anything not conforming to laws in what I have suggested? Anything I am missing that suggests that the course of action is not-doable?

Post by **Greenie** » Fri May 27, 2011 4:43 pm

sushdmehta wrote:Thinking aloud:

So, if she appeals then she can continue to remain in the UK legally under section 3C until all appeal options are exhausted.

Assuming that the appeal may not come up for hearing before such time that you two complete 24 months of cohabitation, then she can withdraw the appeal as and when you reach that stage, return to home country (submit request to withdraw appeal in writing on the day of departure from UK) and apply for UPV there.

Greenie / vinny - anything not conforming to laws in what I have suggested? Anything I am missing that suggests that the course of action is not-doable?

I think this is do able. As long as they don't think she is making a vexatious appeal/application in order to extend her stay in the UK - but given that she is a genuine student i don't know why they would say this.

I don't quite understand the reasons for refusal under tier 4 - i wonder whether these are actually challengable? OP could you explain a bit more - what certificate was missing and what was the letter she provided in its place?

I also think she should be upfront about her intentions to eventually settle here as your partner- I would even go as far to say that as you have an appeal you might as well raise the unmarried partner grounds as part of the appeal as per para 3.2 of the Section 3C document Sushdmehta has linked to above. Even if the judge does not allow the appeal on these grounds due to the shortfall in the cohabitation as long as you provide good evidence of your relationship and cohabitation you'll have some useful findings when it comes to the application for entry clearance.

northcave · Post by **northcave** » Fri May 27, 2011 5:03 pm

What happened was that she lodged her Tier 4 without a CAS number but noted in the covering letter she wrote to the Caseworker that the number would be available in May. Her application was supported by a letter from the university. It was rejected on these grounds.

We were aware of the unavailability of the CAS number but lodged the application because technically, the course is an optional continuation of her PG Diploma, which she has completed to qualify as an Architect. The MA was there to further develop research done or a subject of interest from the PG Diploma.

Another shortcoming was that the course is actually catered for working professionals. Although the university was allowing her to take it full-time, they were not going to create a whole new full time course officially.

She put these details on her covering letter, mentioning that the MA was a continuation of the PG Diploma she completed.

The fact of the matter is that NONE of the current guidelines would allow her to do the course, or stay here in the UK...thus preventing her from completing something she wanted to complete.

Her history is as follows:
- August 2002 - October 2003 - Student
- August 2003 - October 2008 - Student
- Application sent for PSW in September 2008
- Rejection due to bank statements being from Internet banking in December 2008
- Appeal process for PSW successful in January 2009, court hearing lasted 5 minutes and judge was apologetic, grounds for granting appeal was that she should be allowed to continue to pursue her career
- PSW Granted from April 2009 - April 2011

- Tier 1 not possible due to change in rule for higher retrospective pay
- Tier 2 - employers changed their mind last minute due to CoP stating prospective salary has to be much higher than what employer was willing to pay
- Tier 4 - option to continue to take Masters from PG Diploma was presented
- Unmarried Partner - not possible due to shortcomings in length of living together

This is where we stand at the moment. Thoughts / Feedback please?

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Unmarried Partnership - The two year rule

Unmarried Partnership - The two year rule

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