Dependent on work permit and entry refusal

[Out of Africa]

Hi everyone!

Hope you are well?

We need some urgent advice- can you please advise?

To make a long story short, 4.5 years ago I have been in a same sex relationship for a couple of months and thought I could not be gay and got married.

After a year things did not change and I continued my relationship with the previous same sex person until my husband founded out 2 years ago and only divorced me in last month- I got a work permit from my employer and switched visas from a EEA dependant to my own work permit- I need to go back to my country of origin to get entry clearance and then my 5 year work permit will start. In 2 years time I will apply for my residency because then I would have been in the UK for 10 years.

Now the problem is I am still with my same sex partner-she was here on a 2 year working holiday visa and had to go home when it expired and wanted to come back on a visitor visa and they refused her entry at Heathrow- because they did not believe her when she said she is only going to visit friends for a short time-she did not give them a reason why she wanted to come back because I was still married- she went back home and returned 4 months later flying into Scotland and they picked her previous refusal up and refused her entry again-this time she told them about me but they did not grant her clearance. She was send back home and on her way home she managed to come back through another port which gave her 3 months visitor time.

She is still with me and have been overstaying that port clearance for just over a month now.

What can we do to get her on my work permit?

Your wise words will be appreciated!

[Chess]

Nearly impossible to sort out issues in-country.

Best to go back to home country and apply for unmarried partner Visa. Do you have documentary evidence of relationship?

[John]

"Out of Africa", given the importance of today in the UK to same-sex couples, is there are possibility of the two of you wanting to enter into a Civil Partnership?

Incidentally, your partner, from which country?

[Chess]

"Out of Africa", given the importance of today in the UK to same-sex couples, is there are possibility of the two of you wanting to enter into a Civil Partnership?

Incidentally, your partner, from which country?

By the way - does one require a 'Certificate of approval' from the home office to get into a Civil Partnership. if this is not the case then there are equittable issues with regards to heterosexuals!

[John]

Chess, I don't think it is as simple as that. As per opposite-sex couples wanting to get married, it is a total waste of time and money applying for a Certificate of Approval to Marry if less than three months left on the person's visa. Exactly the same applies to same-sex couples wanting to enter into a Civil Partnership.

We are told that the partner is already an overstayer in the UK, so there is no question of applying for a CoA. Instead the person would need to return to their country of origin and apply for a "fiancée visa", and then return to the UK to give the required notice to the Register Office and then register the Civil Partnership.

But first we need to hear from "Out of Africa" whether a Civil Partnership is intended?

[Out of Africa]

Hi John and Chess

Thanks for your reply- we are both from South Africa. Both females.
We do want to get "married".

The solicitors which have dealt with my work permit for my employer are now going to help met with the entry clearance but they wanted to know if I have an independent who needs to go on it. I have not told them about this whole dilemma as I was affraid it will jeopardize my work permit from my employer. I have 6 months now to go back to South Africa to get the entry clearance. Can I first get my entry clearance and then add her when we are in South Africa?

Thanks!

[John]

The way the Immigration Rules have been changed to deal with Civil Partnerships is of course very recent. And at this moment in time I think that all the implications have not been thought through.

Firstly, "Out of Africa", does South Africa have Civil Partnerships (by whatever name they are called)? I ask that because I cannot immediately see an easy route for you and your partner to register a Civil Partnership in the UK. You personally do not have ILR and you are not British. So you are not "present and settled" in the UK. Accordingly your partner does not appear to be able to get a "fiancée" visa.

Here in the UK your partner cannot possibly apply for a Certificate of Approval to Register a Civil Partnership, she that she does not have a visa that, when issued, was not more than six months, with at least three months validity left. Indeed she is an overstayer.

The only other way of possibly getting the registration of the Civil Partnership done in the UK is if your partner goes back to South Africa and then successfully applies for a "Wedding" Visitor visa. But wait a minute, that supposes she does not intend to stay in the UK. So the plan would need to be ... get one of those visas, register the Civil Partnership in the UK, and then go back to South Africa and get a dependent's visa, dependent upon you that is. But it is problematic whether the "wedding" visitor visa would be issued.

But if South Africa does have Civil Partnership it could be done there, and then your partner could apply for her dependent's visa.

The huge difference between opposite-sex couples and same-sex couples appears to be this. Opposite-sex couples can marry in any country, subject to the land of that land. Same-sex couples will struggle to find countries to enable them to register a Civil Partnership. Until there is worldwide equality maybe IND should adopt a more relaxed policy to enable Civil Partnerships to be registered. But will it?

[Kayalami]

My 0.02c,

Agree that the only viable option for the op's partner is for her to return to RSA and be included as a dependent in the WP EC. Only issue is whether the op and her partner have been co-habiting/ living in a relationship akin to marriage for a minimum of two years with substantive evidence to this fact. My interpretation from the op's post is that she continued to co-habit with her EEA spouse but secretly continued a relationship with someone else. Were the op settled then they could have a civil partnership negating the 2 year requirement were this to be an issue.

FWIW I doubt the HO will recognise in their own right overseas CP and/or same sex marriages in the near future (read 5 years). In fact the government has gone to great lengths to point out that legally the CP is not the same as a marriage. The Home Office does recognise an 'opposite sex' marriage conducted overseas that is in accordance with the laws of that country. As a fall back to maintain the integrity of the immigration system there may be aspects of ordinary residence considered and of course the recognition of only one spouse in polygomous relationships.

The Supreme Court of RSA ruled earlier this month that the current marriage act which restricts marriage to 2 persons of opposite sex is unconstitutional. Parliament has 12 months to change the law. Due to my comments above this is inconsequencial for the OP from a UK basis.

[ppron747]

..........FWIW I doubt the HO will recognise in their own right overseas CP and/or same sex marriages in the near future (read 5 years). In fact the government has gone to great lengths to point out that legally the CP is not the same as a marriage. The Home Office does recognise an 'opposite sex' marriage conducted overseas that is in accordance with the laws of that country. As a fall back to maintain the integrity of the immigration system there may be aspects of ordinary residence considered and of course the recognition of only one spouse in polygomous relationships.

The Supreme Court of RSA ruled earlier this month that the current marriage act which restricts marriage to 2 persons of opposite sex is unconstitutional. Parliament has 12 months to change the law. Due to my comments above this is inconsequencial for the OP from a UK basis.

I'm puzzled, Kayalami. Did you look at the Civil Partnership Act 2004 before concluding that the government wouldn't be recognising overseas civil partnerships? It seems to me that Chapter 2 of the Act is only there for the purpose of makng arrangements for recognition of such partnerships.

There is also provision for British consular registration of civil partnerships, where the local law doesn't provide for them - so long as the local authority doesn't object, and one of the parties has British nationality. This latter provision requires an Order in Council, though, and I don't know whether one has been made.

[Kayalami]

I'm puzzled, Kayalami. Did you look at the Civil Partnership Act 2004 before concluding that the government wouldn't be recognising overseas civil partnerships? It seems to me that Chapter 2 of the Act is only there for the purpose of makng arrangements for recognition of such partnerships.

There is also provision for British consular registration of civil partnerships, where the local law doesn't provide for them - so long as the local authority doesn't object, and one of the parties has British nationality. This latter provision requires an Order in Council, though, and I don't know whether one has been made.

Paul thanks for the heads up. I had indeed reviewed (admittedly not in its entirety) the CPA 2004 prior to my posting. Hence my caveat on CP recognition as an issue for the 'HO' as a distinct department in respect of specific immigration applications and not the entire government. Of course this in the context of the op's circumstances. The immigration rules affirm this - same sex and opposite sex unmarried partners of limited leave visa holders still need to meet the 2 yr requirement of 'living in a relationship akin to marriage'. There is no CP component here to negate the time requirement - perhaps the rules will be changed to reflect the spirit of the CPA. I hope that helps but appreciate my response if not taken in terms of the op's circumstances (as I intended it to be) may be misleading.

[ppron747]

.......Hence my caveat on CP recognition as an issue for the 'HO' as a distinct department in respect of specific immigration applications and not the entire government. Of course this in the context of the op's circumstances. The immigration rules affirm this - same sex and opposite sex unmarried partners of limited leave visa holders still need to meet the 2 yr requirement of 'living in a relationship akin to marriage'. There is no CP component here to negate the time requirement - perhaps the rules will be changed to reflect the spirit of the CPA.

I'd be astonished if the Rules don't get changed (if indeed it hasn't already happened) to take account of the CPA - the list of Acts which have been amended by the CPA seems almost endless, and it would be incredible for secondary legislation not be amended so as to follow suit - although in this particular case any amendment wouldn't, of course, help OP while South Africa continues not have CP legislation.

CORRECTION: The latest consolidated version of the Immigration Rules, at http://www.ind.homeoffice.gov.uk/ind/en ... rules.html does indeed take account of civil partnership; I haven't been through it line by line (and IND, helpfully, don't seem to have put the promised Explanatory Memorandum on their website) but, from a quick scan through, it appears that wherever the word spouse appeared before, the words "or civil partner" have been added. Apologies for not checking this before posting earlier.