The Home Office welcomes same
sex couples, but only those lucky enough
to live in a liberal state

27 May 2020

The UK spouse visa has been the subject of frequent criticism and has rarely been out of the news since the rules surrounding it were completely changed in 2012. This is predominantly as a result of the stringent and often exclusionary financial requirements imposed. However, when you take a look at the basic relationship requirements imposed by this route, it is exclusionary in an unexpectedly discriminatory way.

Appendix FM (the relevant part of the Immigration Rules) defines a partner as:

(i) the applicant’s spouse;
(ii) the applicant’s civil partner;
(iii) the applicant’s fiancé(e) or proposed civil partner; or
(iv) a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application.

The UK first recognised same sex partner applications for immigration and visa purposes back in 1997. Initially a discretionary concession would be granted and then, in October 2000, same-sex relationships were formally recognised in the Immigration Rules. Under the current iteration of the Rules the same-sex partners of British citizens or those ‘settled’ in the UK (meaning those with indefinite leave to enter or remain) can apply to come to the UK, or stay in the UK, supposedly on a par with heterosexual couples and on the basis of three types of partnership:

  • Marriage or civil partnership
  • Two years of cohabitation (commonly known as unmarried or same-sex partners)
  • Fiancé/proposed civil partnership

On the face of it this would seem to be a fairly broad and non-discriminatory definition of partner. However it is important to remember that the prior cohabitation is mandatory for a partner who is not married or in a civil partnership to qualify as an unmarried or same-sex partner. It is not enough that you have just been in a relationship for 2 years or even longer, no matter how strong or how enduring that relationship may be.

Across the world members of the LGBTQ+ community are subjected to the criminalisation of their relationships, being targeted for who they are and who they love. There are a jaw dropping 73 jurisdictions around the world that still criminalise private, consensual, same-sex sexual activity. Almost half of these are Commonwealth countries. Of the jurisdictions which criminalise same-sex sexual activity there are 12 in which the death penalty is imposed or at least a possibility for private, consensual same-sex sexual activity and at least 6 of these actively implement the death penalty. Laws that criminalise lesbian, gay, bisexual and transgender people put them beyond the protection of the law, fostering a climate of fear and violence and this climate is mirrored in many other countries where, although not subject to criminalisation, members of the LGBTQ+ community still face constant and consistent homophobic persecution.

There are therefore many countries around the world where members of the LGBTQ+ community will not be able to marry, enter a civil partnership or cohabit without serious fear for their safety and who are therefore effectively barred from coming to the UK as the partner of a British citizen. An oversight of this magnitude seems overwhelmingly unfair, and one would seriously hope that some sort of concession must have built into the Rules to mitigate this.

An attempt has been made by the Home Office to make some form of concession to the fact that these relationship based applications necessarily engage human rights considerations. Those provisions can be found here.  Under the section titled ‘Exceptional Circumstances’ the Rules provide for situations where an applicant is unable to meet the requirements of the Rules stating that

the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application."

This test is a high bar. It is insufficient to demonstrate that one’s circumstances are unusual or difficult. You have to prove that the consequences of a refusal would be disproportionate and not justified by public interest. Unfortunately, the Home Office seems to attribute an unreasonably hefty weight to the public interest aim of maintaining effective immigration control. We frequently see questionable and calculated decisions by the Home Office as part of the ‘hostile environment’  policy (renaming this as the ‘compliant environment’ is laughable - let’s call a hostile spade a spade) whereby reducing immigration is deemed to be the public priority and where minimal attempt is made to substantively engage with the serious issues in play. Whilst any UK immigration application under Appendix FM does necessarily engage human rights considerations, and therefore generates a right of appeal, any such appeal against a refusal of leave to enter the UK will take place outside the UK, meaning that the status quo of separation is maintained until that process is concluded.

Unfortunately it is very difficult to say which cases will succeed in an exceptional circumstances application. Some recent guidance has been provided by the Supreme Court in Agyarko [2017] UKSC 11, in which the court concluded that Appendix FM is compatible with Article 8 of the ECHR and it is up to the Home Office to decide what “exceptional circumstances” and “unjustifiably harsh consequences” mean. Ultimately, it is always a balancing exercise and sadly in the eyes of the Home Office love alone is not enough to overcome the need to maintain effective immigration control. What we can say with certainty however, is that if you know that you do not meet all the requirements then it is wise to include in your application as much evidence as possible of both your relationship and the potential impact of a refusal. 

If you are able to convince the Home Office to make a concession in your case or succeed at an appeal, then you are not granted leave to enter on the ‘normal’ spouse route, but will be granted discretionary leave to enter. Not only is this an additional layer of stigma, explicitly labelling your relationship as different from the norm, but the length of time which it takes to settle in the UK indefinitely with you partner is doubled, going from five to ten years. A decade of impermanence. Unless you are later able to switch onto the five year track (something which you should definitely consider trying) then you then have to pay double the amount of the ever increasing Home Office fees, double the amount of the ever increasing healthcare surcharge and double the amount of the ever increasing administrative fees imposed by the Home Office’s commercial partners. When you add everything up the sums are astronomical and, if we’re honest, feels like a direct tax on those relationships which do not fit neatly into the Home Office’s narrow boxes.

The only other option for those who are not married, civil partners or able to demonstrate 2 years of cohabitation, is to apply to come to the UK as a proposed civil partner or fiancé. If this application were successful you would then have 6 months to marry or enter into a civil partnership in the UK and to then transfer onto the five year partner route from within the UK. However, as part of this application the Home Office expects you to be able to provide extensive evidence of the relationship and your plans to wed. This would include statements of support from friends and family, explicitly confirming their knowledge of and support for your relationship and future plans, evidence of time spent together such as holiday bookings, and photographs of you as a couple. Unfortunately it is highly likely that members of the LGBTQ+ community who live in states where they would face persecution for their relationship would be unable to provide any such documentation and, once again, could be significantly disadvantaged.

It is therefore to be desperately hoped that the Home Office will come to appreciate and give due consideration to the difficulties faced by members of the LGBTQ+ community around the world and will end the ‘hostile environment’ policies that make it so difficult for migrants, even where there are compelling human rights concerns. Fortunately, the message of hope has always been a powerful and enduring one in the LGBTQ+ community.

About the author

Elli joined Kingsley Napley in August 2018 as a Legal Assistant in the private client immigration team.

Elli has a wide range of experience in both immigration and nationality matters, including points-based applications, EEA applications and Appendix FM applications. She also has a keen interest in complex immigration matters including Human Rights based applications, cases on appeal and asylum claims.


Latest blogs & news

Progress on our pledge to increase diversity and inclusion within Kingsley Napley

When I became Senior Partner of Kingsley Napley in 2018, I made a very clear pledge to the firm – that I would make it one of my key objectives to increase diverse talent and foster a culture of inclusivity.

Celebrating Bisexuality Visibility Day!

The visibility of the “B” in our LGBTQ+ umbrella is marked every year on 23 September. At Kingsley Napley, we are proud to have bisexual members of our LGBTQ+ and Allies Network and strive for everyone to feel like they can be themselves and bring their whole selves to work. Outside KN, and in this year alone, Robin has come out as bisexual in the new Batman comic, more awareness has been raised about bisexuality with celebrities, such as Megan Fox, Lily Cole, speaking out and there is more representation of bisexual people in mainstream shows, such as Sex Education, Brooklyn Nine-Nine.

Trans people who lack mental capacity – How are decisions relating to transitioning made?

Trans adults with full decision-making capacity have the freedom to secure hormonal and surgical interventions to align their bodies with the physical attributes typical of the gender with which they identify (a process known as “transitioning”). However, for those who lack capacity, the involvement of others who are responsible for making decisions on their behalf is required, and the position can be complex as a result. This blog explores the approach to making decisions relating to transitioning on behalf of protected trans people, applying the best interests test and guidance from case law, and discussing the practicalities for decision-makers.

Drag queens and activism: a story of political realness

When I told some of my friends I was writing a piece about drag activism, their reaction was almost unanimous… 

"Oh, but, is there much to say?" 

That's when I realised that drag queens, for many, are more synonymous with big hair and lip-syncing  pop hits rather than political consciousness and activism. You can certainly understand the reason for this - we have been totally spoiled in recent years with the explosion of Ru Paul’s Drag Race around the world - the make-up, talents and confidence being a feast for the eyes (and the soul). But we cannot minimise the political importance of Mama Ru’s creation. Who could forget numbers such as “Shady Politics”; the discussions of gay conversion therapy while applying make-up; and Bob the Drag Queen describing his arrest during a 2011 marriage equality protest? Not to mention Nancy Pelosi sashaying into the All Stars season…

Coming out? How to support your friends and family members when they come out to you.

Coming out is an extremely personal journey and will be unique to each person. It takes a lot of courage to come out and a person may have to repeatedly do this in their personal and professional lives. Statistics show that 46% of people who identify as lesbian, gay and bisexual and 47% of people who identify as trans feel comfortable to discuss their orientation or gender identity.

When the arch of the rainbow actually casts a shadow on you.

How can you put the spotlight on intersectionality to remind others that, even within the LGBTQ+ community, not everyone is treated equal?

Are you proud of who you are, your journey and the person that you’ve become? Do you truly wear your heart on your sleeve? For some, being open and honest about who we are (which includes our gender identity or sexuality) does not come easily and can be extremely hard. It can be even tougher at work, and for those that hide their true self, the energy expenditure is endless. That survival cost of energy makes you less productive, or even worse still, it has a detrimental impact on your mental and physical health.

The Conversations That We’re Forgetting to Have

I am a trans woman who has recently embarked on her transition. Having only taken my first steps on this journey, I am acutely aware when writing this that I have much to learn about myself, about being trans, and about the diverse LGBTQ+ family that I now find myself part of. However, there is one theme that I feel is important to discuss as we celebrate Pride in 2021.

Three years on, the UK Government is still ‘’dragging its feet’’ about banning gay conversion therapy.

Following on from my colleague Sameena Munir’s blog ‘’pray the gay away: cull conversion therapy worldwide’’, the issue of gay conversion therapy dominates contemporary conversations surrounding LGBT politics and legislation in the UK, but the Government has failed to deliver on its promise to ban it.

"They will say I’m pushing an agenda. But the truth is, I am.” - The rise of queer artists and the importance of visibility

For two weeks during Pride month, Kingsley Napley are publishing a series of blogs to celebrate Pride and highlight LGBTQ+ issues from home and abroad.

It’s been 9 years since R&B artist Frank Ocean headed off rumours about his particular pronoun usage in the album Channel Orange by posting on Tumblr that his first love had been a man. Since then, the momentum for the openness and success of queer artists has continued to gather pace, and LGBTQ+ representation in the arts and mainstream media is as wide as it has ever been. This rise has however raised important questions about pigeonholing queer artists, and perhaps most interestingly whether they must always shoulder the responsibility of ‘pushing the agenda’.

Visibility, Unity and Equality: out and proud in the legal sector

In February this year, I attended a virtual talk held by the InterLaw Diversity Forum for LGBT+ History Month. The speakers featured individuals working in the legal sector and each discussed their experience of coming out as trans or non-binary at work. It feels an apt lesson given this year’s Pride theme: Visibility, Unity and Equality.

Things not to say to same-sex parents

In January 2020, I was fortunate enough to give birth to a beautiful, healthy baby boy.  As far as I know, I am the first partner at Kingsley Napley (although certainly not the first employee) who has a baby who is lucky enough to have two mums.  News of my pregnancy was met with overwhelming support from my colleagues.  That support continues to this very day, and my wife and I remain truly grateful for the kindness that has been shown to us.  However, since falling pregnant I have learnt that not all workplaces are as supportive to same-sex parents as mine.  The concept of two mums or two dads starting a family is something that some people still struggle to get their heads around.   So this year, for our KN Pride blog series, I have decided to explain the questions, that speaking from my own experience, it is not helpful to say to same-sex parents.

#PrideInside in 2020 and reflections on allyship at Kingsley Napley

Tomorrow, global organisations across the world are celebrating Global Pride, and I wanted to write to say how much it means to us at Kingsley Napley to celebrate Pride and to support our LGBTQ colleagues. 

Gender neutral legal drafting – not why, but why not?

On sitting down to write this blog, I was a little embarrassed. When you actually take the time to think about drafting legal documents in a way that is gender neutral, it seems to me that the question isn’t why do this, but why not?

Covid 19 Crisis - Can we afford (not) to invest in equality, diversity and inclusion initiatives?

In 2012 we formed an LGBTQ* & Allies network at Kingsley Napley (KN).  I’m ashamed to say that the impetus to form this network came not from within, but from Scott, a new joiner who upon his arrival was surprised, and critical (rightly so) to find that no such network existed at KN.   

The Home Office welcomes same sex couples, but only those lucky enough to live in a liberal state

The UK spouse visa has been the subject of frequent criticism and has rarely been out of the news since the rules surrounding it were completely changed in 2012. This is predominantly as a result of the stringent and often exclusionary financial requirements imposed. However, when you take a look at the basic relationship requirements imposed by this route, it is exclusionary in an unexpectedly discriminatory way.

IDAHOBIT Day 2020: I am an Ally

This Sunday marks International Day against Homophobia, Biphobia and Transphobia.  On this day, over 130 countries around the world draw attention to the various forms of discrimination and violence that the LGBTQ community continue to experience. It serves as a reminder each year of the work which is still needed to achieve LGBTQ equality.  David Sleight, a Partner and ally, at Kingsley Napley shares his experience below.

Calling all managers and senior executives – the importance of being a visible LGBTQ ally

Now is a more important time than ever to be a visible ally to LGBTQ people in the workplace.  Discrimination on the grounds of sexual orientation continues to take place, often with disastrous ramifications for individuals and businesses. 

Buying a house: the pitfalls for unmarried same-sex couples

The current government lockdown is making everyone aware of their living arrangements.  Relationships are being put under new pressures and the current emotional and financial impact of the virus may be causing additional stresses in a relationship. It is a sensible time to make sure you understand how you own your property and the implications of such ownership.

Disregarding Convictions – the Turing Law and its limitations

There are countless instances of LGBT+ individuals being stigmatised and discriminated against throughout history, including in criminal law. In particular, a number of sexual acts between men have historically been criminalised. This homophobic legislation was compounded by an insidious approach to investigations, which targeted men who were believed to be gay, leading to a large number of men being criminalised, with all of the consequences that a conviction brings, for behaviour that should never have been illegal in the first place.

“Love comes first”: The journey to equal partnerships and marriage in the UK

On the eve of the new decade, 31 December 2019, the first mixed-sex couples officially entered into civil partnerships, granting them the same legal protections as in marriage.

LGBTQ bulletin board

LGBTQ bulletin board

Banning conversion therapy: how the UK Government proposals fall short and risk criminalising gender identity counselling services

Read the blog

Drag queens and activism: a story of political realness

Read the blog

Coming out? How to support your friends and family members when they come out to you.

Read the blog

When the arch of the rainbow actually casts a shadow on you.

Read the blog

Three years on, the UK Government is still ‘’dragging its feet’’ about banning gay conversion therapy.

Read the blog

"They will say I’m pushing an agenda. But the truth is, I am.” - The rise of queer artists and the importance of visibility

Read the blog

Visibility, Unity and Equality: out and proud in the legal sector

Read more

Pride 2021 blog series: Things not to say to same-sex parents

Read blog

The importance of LGBTQ+ spaces on International Day against Homophobia, Biphobia and Transphobia

By Emily Elliott


The lionesses: how female footballers are tackling equality with pride

Read blog

Network members attend seminar on gender-neutral drafting, sponsored by InterLaw

See Guide to Gender-Neutral Drafting

Kingsley Napley listed in the “Top 25 in the Legal Sector” of the Workplace Equality Index 2019

Read more

Letter to a Homophobe

by Melinka Berridge

Read blog

Kingsley Napley's LGBTQ+ Blog Series 2020

Read our 2020 blog series

Hidden Flags

By Mary Young

Read blog

Pray the gay away: cull conversion therapy worldwide

By Sameena Munir

Read blog

#IDAHOBIT day 2019

Two thirds of LGBTQ people still being harassed at work: IDAHOBIT is a timely reminder of the work that still needs to be done

Read Stephen Parkinson's blog

LGBTQ & Allies Network members attend (and win) quiz in support of The Outside Project - the Uk's first LQBTIQ+ community shelter and centre

Kingsley Napley Pride lanyards #Pride2019

More rainbows, but also more hate crime: why Pride is still so important in 2019

By Emily Elliott

Read blog

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Skip to content Home About Us Insights Services Contact Accessibility