Tier 4 student visa to Unmarried Partner Visa

[nutmeghan]

Hello,

My British boyfriend and I (American citizen) have been dating since January 2015. We did the dreaded long-distance relationship for 1.5 years, during which time he visited me 5 times in the US and I visited him 2 times in the UK. Then I moved to the UK, into his house, in September 2016 on a Tier 4 student visa for a full-time master's program. My student visa expires on January 20, 2018, when we will have been living together for just over 16 months and dating for three years.

We saw a solicitor a week ago, who told us that we have a 'strong case' for the Unmarried Partner Visa. However, everything I read online says we must have been living together for 2 entire years, no exceptions. He assured us this was not the case, and that since we have been dating for well over 2 years and living together for some of that, we would be fine.

I want a second opinion. Has anyone ever heard that the 2-year requirement of cohabitation is not necessary as long as the couple can prove they were in a committed relationship for over 2 years? Any instances in which our case is indeed a 'strong' one for the Unmarried Partner Visa? [We are not interested in getting engaged/married yet.]

I appreciate any guidance as I do not want to pay the visa application fee if it will be rejected for this one criterion!

All the best,
Meghan

[CR001]

The 2 year 'living in a relationship akin to marriage' with substantial documentary evidence to prove it is mandatory.

Your solicitor is wrong. If he was correct, there would be far more 'boyfriend/girlfriend dating' abusing this route.

[Casa]

Hello,

My British boyfriend and I (American citizen) have been dating since January 2015. We did the dreaded long-distance relationship for 1.5 years, during which time he visited me 5 times in the US and I visited him 2 times in the UK. Then I moved to the UK, into his house, in September 2016 on a Tier 4 student visa for a full-time master's program. My student visa expires on January 20, 2018, when we will have been living together for just over 16 months and dating for three years.

We saw a solicitor a week ago, who told us that we have a 'strong case' for the Unmarried Partner Visa. However, everything I read online says we must have been living together for 2 entire years, no exceptions. He assured us this was not the case, and that since we have been dating for well over 2 years and living together for some of that, we would be fine.

I want a second opinion. Has anyone ever heard that the 2-year requirement of cohabitation is not necessary as long as the couple can prove they were in a committed relationship for over 2 years? Any instances in which our case is indeed a 'strong' one for the Unmarried Partner Visa? [We are not interested in getting engaged/married yet.]

I appreciate any guidance as I do not want to pay the visa application fee if it will be rejected for this one criterion!

All the best,
Meghan

Your Solicitor is either misguided or is grossly incompetent regarding a very basic issue in the Immigration Rules.

The 24 month co-habitation period in a relationship 'akin to marriage' is mandatory. If you apply without the documented evidence to support this requirement, your application will be refused and the only person to gain will be your Solicitor, with his substantial legal fees.

Edit: Beaten by Miss Speedy Fingers, CR001 (as I suspected I would be).

[CR001]

Edit: Beaten by Miss Speedy Fingers, CR001 (as I suspected I would be).

Am super fast today due to lots of tea consumed

[nutmeghan]

Hi Char and Casa,

Thank you so much for your quick responses! I emailed the solicitor with a version of your responses and he replied with a lot of information, which still does not make it clear to me whether the UK government would immediately reject our application based on failure to meet the 2-year cohabitation criterion. He said:

'The cohabitation is unmistakably a very important requirement for this application and especially when it comes to assess how genuine the relationship between the Applicant and the Sponsor is. In fact, the immigration rules (IR) say: "the parties have been living together in a relationship akin to marriage or civil partnership which has subsisted for two years or more".

Now, when the IR say "which has subsisted for two years or more" they refer to the "relationship akin to marriage", not the "living together" part. As advised during our meeting, it is important to show that you have lived together for as long as you could, but cohabitation is not the only factor the Home Office looks at when they are assessing how genuine a relationship is. If you've read online, I hope you came across to this: https://www.gov.uk/government/uploads/s ... -FM2.1.pdf from the Home Office. See part 3 which says that:

"Caseworkers have discretion to grant or refuse an application based on that overall assessment, regardless of whether one or more of the factors below is, or is not, present in the case. Consideration of whether a relationship is genuine and subsisting is not a checklist or tick-box exercise."

And it continues on part 3.1

"Factors which may be associated with a genuine and subsisting relationship

(i) The couple are in a current, long-term relationship and are able to provide satisfactory evidence of this.

(ii) The couple have been or are co-habiting and are able to provide satisfactory evidence of this. (PLEASE NOTE THAT THERE IS NO MENTION OF TWO YEARS COHABITATION HERE)

(iii) The couple have children together (biological, adopted or step-children) and shared responsibility for them.

(iv) The couple share financial responsibilities, e.g. a joint mortgage/tenancy agreement, a joint bank account and/or joint savings, utility bills in both their names.

(v) The partner and/or applicant have visited the other’s home country and family and are able to provide evidence of this. (The fact that an applicant has never visited the UK must not be regarded as a negative factor, but it is a requirement of the Immigration Rules that the couple have met in person).

(vi) The couple, or their families acting on their behalf, have made definite plans concerning the practicalities of the couple living together in the UK. In the case of an arranged marriage, the couple both consent to the marriage and agree with the plans made by their families."

Now, I am not saying that the application is simple because there are many factors coming into play, and one of those is the cohabitation, no doubt. However, you have told me that you lived together for about one year (since you entered the UK) which it may be argued that you would have lived together earlier if you had the chance to live in the same country. From what you said, you relationship sounded very genuine to me and it is now a matter of gathering as much evidence as possible and give you the best chances to succeed.'


I told him I'm still not satisfied by the ambiguity of that language and would like him to confer with his supervisor and get back to me next week. Does it still seem like he is just trying to get paid and does not care that our application will be rejected?

I really appreciate your help with this!

Kind regards,
Meghan

[CR001]

Now, when the IR say "which has subsisted for two years or more" they refer to the "relationship akin to marriage", not the "living together" part.

He seems to be trying to convince himself. Two years most certainly does relate to the 'living together' in a relationship 'akin to marriage'. Being a boyfriend/girlfriend/dating in two different countries is not 'akin to marriage' is it? Applicants have been refused for not meeting the 2 year cohabitation, with evidence, requirement. By all means, feel free to give it a go based on his advice and let us know how you get on.

295A(i)(a)(i) clearly states the requirements.

https://www.gov.uk/guidance/immigration ... ly-members

295A. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the unmarried or same-sex partner of a person present and settled in the United Kingdom or being admitted on the same occasion for settlement, are that:
(i) (a)(i) the applicant is the unmarried or same-sex partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement and the parties have been living together in a relationship akin to marriage or civil partnership which has subsisted for two years or more; and

See also 3(iv) in the more recent document to the link your 'solicitor' has provided.

https://www.gov.uk/government/uploads/s ... ction9.pdf

See also 12. Set5.12 https://www.gov.uk/government/publicati ... -two-years

12. SET5.12 Assessing whether the relationship has subsisted for two years
‘Living together’, should be applied fairly tightly, with a couple providing evidence that they have been living together in a relationship akin to marriage or civil partnership which has subsisted for two years or more.

Periods apart for up to six months would be acceptable for good reasons, such as work commitments, or looking after a relative as long as:

it was not possible for the other partner to accompany; and
the applicant can show evidence that the relationship continued throughout that period, for example, by visits, letters, logged phone calls.

[CR001]

And also 13. Set5.13

https://www.gov.uk/government/publicati ... artnership

13. SET5.13 What types of evidence might demonstrate living together and a relationship akin to marriage / civil partnership?
The applicant must provide six pieces of correspondence addressed to him / her and their partner at the same address as evidence that they have been living together during the past 2 years. The items of correspondence should be addressed to them jointly or in both their names. If they do not have enough items in their joint names, they may also provide items addressed to each of other individually if they show the same address for both of them. The documents provided must be originals and should be spread over the whole 2 years; they should also be from at least 3 different sources. Examples of what documentation the applicant could provide are listed below:

Joint commitments, (such as joint bank accounts, investments, rent agreements, mortgage, life insurance policy naming the other partner as beneficiary etc);
Birth certificates or records of any children of the relationship, showing both partners as parents;
Any official correspondence linking both partners to the same address, for example Council Tax, utility bills, Doctors records;
Any other evidence that adequately demonstrates the couple’s long-term commitment to each other.

And also (this pesky '2 years' keeps popping up)

https://www.gov.uk/uk-family-visa/partner-spouse

What you’ll need to prove
You must be able to prove one of the following:

you’re in a civil partnership or marriage that’s recognised in the UK
you’ve been living together in a relationship for at least 2 years when you apply

[seagul]

Few members few months ago but under EU route where same 2 years of cohabitation akin to marriage requirement is had got success with less than 2 years of cohabitation which can be searched in this forum. But not sure whether such discretion/miracle still happens but I think it rarely happens under UK immigration rules application.

[Casa]

The EEA Regulations don't have the same rigidity on the 2 year co-habitation, unlike the UK Immigration Rules.

[CR001]

I told him I'm still not satisfied by the ambiguity of that language and would like him to confer with his supervisor and get back to me next week. Does it still seem like he is just trying to get paid and does not care that our application will be rejected?

He sounds like a junior if you are asking him to 'confer with his supervisor'. Ask him if he will do the visa on a 'no win no fee' basis and see what he says and how quickly his advice might change.

[Casa]

Isn't your 'Solicitor' aware that he has been referring to Immigration Rules which were updated more than five years ago in July 2012

[nutmeghan]

Hi all,

I can't thank you enough for all of your guidance and detailed references to government documents! I knew it was too good to be true but am still so disappointed that we have paid £200 for a half hour of worthless advice. I am going to pass on some of the quotations you have provided, Char (thank you again) and request his willingness to do the 'no win no fee' route to see what he says.

As an aside--and I know I may be grasping at straws--is there any other route that anyone is familiar with that I could legally use to get to stay? I know we are not the first to fall in love and struggle to get to be together (tale as old as time) but with my student visa expiration date looming and the idea of going back to a long-distance relationship indefinitely makes me so upset. I know marriage would make it easier but neither of us want to force our relationship ahead before we're ready just so I can satisfy a government's requirements to stay. [And I have had five separate interviews but two of the employers directly told me they couldn't meet the work visa requirements to sponsor me, so I am not holding my breath on the work visa route even though I am still applying for job openings.]

Thank you again for all of your help!

All the best,
Meghan

[CR001]

Any chance you could extend your student visa and maybe do a PhD for a year or two??

Other than that, marriage would be the only way really to switch within the UK to stay.

[nutmeghan]

Thanks again for all your help - I heard back from the solicitor, who confessed his supervisor said Spouse visa would be our best option and that we do not meet the 2-year cohabitation requirement for the Unmarried Partner Visa!

My boyfriend and I had a long talk after that, and given how much we love each other and want to stay together, have decided to look into the Fiancee route. However, I can only find guidance on the UK govt. web site about applying from outside the country and waiting for the visa to be approved before entering the UK. Does anyone know if I can apply for the Fiancee visa without having to leave the country?

I would imagine that as long as we apply before my student visa expires (20 January), it would be acceptable for me to stay past the student visa expiry date while we wait to hear a decision on the fiancee visa. However, we also figure he needs to propose before we apply for the fiancee visa, so I'm basically waiting around with butterflies!

Thanks again for all your help with this. It is terribly confusing and anxiety-provoking to go through all this when all we want is to spend our lives together!

All the best,
Meghan

[Obie]

I am glad the solicitors, that is obviously if he is one, decided to approach an expert or a superior.

[CR001]

You cannot apply for the fiance visa within the UK. It is only possible to apply for this from your home country.

For applications within the UK, you only have the option of Unmarried Partner Visa or Spouse visa.

[nutmeghan]

Hi again,

Thanks for letting me know - that is unfortunate that we can't switch to the Fiancee visa from within the country!

However, as my student visa expires 20 January and my graduation is 8 February, I was always planning to come back to the UK for graduation. My uni's web site informs me I can come back as a visitor for my graduation, for up to 6 months without a visa (as I'm from the US).

So, since I wouldn't be allowed to work on the Fiancee visa and I wouldn't be allowed to work as a visitor, would it be possible for me to leave before 20 January, come back a few days later as a 'visitor' for graduation, and continue to live with my boyfriend, plan our wedding, get married, and then apply for the Spouse visa, all within 6 months from my returning to the UK?

I really appreciate all of your input

All the best,
Meghan

[Casa]

You can't marry in the UK while here as a visitor.

You will either have to apply for a fiance visa from your home country and marry in the UK within 6 months and then apply for a FLR(M) visa to remain....or marry in your home country and apply for a Spouse Settlement visa from there.

If you're not ready to settle in the UK you also have the option of applying for a Marriage Visitor visa, but you would have to leave the UK after the wedding within the 6 months granted.