Durable Partner or Legally Married: Fine Line Between Visa or no Visa

It can come as a surprise to some that in the UK only a few kinds of religious marriage are automatically recognised as legal: Anglican (Church of England), Jewish and Quaker, and, in Northern Ireland only, Roman Catholic. Couples who are married in the UK under the rites and tenets of some other organised religion (for example, Islamic) are not considered legally to be family members unless their marriage is registered through the Register Office (or if their priest, pastor or imam also happened to have a licence to conduct a State marriage at the same time as the religious ceremony).

Sometimes, this is no issue at all. Other times however, this can lead to a fine line between a visa being granted and a visa being refused. In one scenario, a failed Egyptian asylum seeker who has exhausted his asylum appeal rights, may be married Islamically in the UK to a French person and be unable to enter legal marriage for one reason or another (e.g. they never had a passport of their home country and cannot get one due to fear of approaching their country’s embassy in the UK).

Immediately, there is a difference between being able to qualify for leave to remain under the EU Settlement Scheme, were the couple to be legally married, and having to go for a residence card under the EEA Regulations. The couple are considered unmarried partners and would have to first satisfy the Home Office that they are in a “durable” relationship, to be able to get a document off the back of that before the Egyptian partner being able to apply for leave to remain. This can then become more complicated if they have not been living together in a relationship for two years.

For all sorts of reasons, the couple may not yet have even been living together at all. It could be that they have not reached two years or it could be that due to the failed asylum seeker’s status he is not permitted to himself be a tenant anywhere and cannot get any official correspondence in his name. In some cases, the couple may have a child together which would help in satisfying the requirement that they be in a durable relationship without cohabiting for two years however there may be additional complications.

The French partner would need to show that they either have permanent residence or that they continue exercising “Treaty Rights” in the UK. If they themselves have not yet acquired permanent residence then they need to show they are exercising Treaty Rights one way or another: employed, self-employed, student with comprehensive sickness insurance for themselves and for all their family, self-sufficient with comprehensive sickness insurance for themselves and for all their family, or else job-seeking for short periods of time usually no more than three months.

In one scenario, it may be that the French partner is the mother of the couple’s child, she has ceased working due to recent childbirth, the couple are not actually living together because they do not have enough income between them to rent large enough accommodation and the Egyptian partner himself cannot sign up to anything, she has no other help and is left to look after the child single-handedly therefore must delay her re-entry to work. She could potentially argue she is a retained worker but this itself is a matter for discretion especially as leaving work due to pregnancy and childbirth is not of itself a sickness or disability and there is no clear guidance as to how long the person can reasonably stay off work before actively job-seeking again.

The difference between being legally married and religiously married makes all the difference in the world in whether being granted the visa or not.  

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Vestra Lawyers are able to help prepare and submit applications under these routes. Please contact us on 01217285999, info@vestralawyers.com or else leave an enquiry on our website www.vestralawyers.com and we can discuss how best we can help.