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.
 

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.