Update to the definition of unmarried partner for Appendix FM family visa applications

The Home Office is set to change the definition of an unmarried partner under Appendix FM on 31 January 2024, which could result in more flexible and generous caseworking.
 

In the current quagmire of immigration law positive changes are few and far between and are rarely subject to the same fanfare that more restrictive changes receive.

One such change is in the recent statement of changes to the rules, where it can be found, upon very close review, that the definition of unmarried partner for Appendix FM family visa applications is being shifted, in what appears to be a positive and pragmatic change.  Alongside the announcements of massive increases to the minimum income requirement for family visas, this is an encouraging counterpoint for some families.

In particular, if a couple in a relationship where the applicant is hoping to apply as an unmarried partner but is concerned they will not meet the upcoming financial requirement but won’t have accrued two clear years of cohabitation before the changes come in, it is possible that they may be able to benefit from the revised rules.

The current rules

Spouses and civil partners generally (not always!) have less trouble convincing the Home Office of the genuineness of their relationship.  For unmarried partners the qualification criteria and evidence to be provided in support has always been more burdensome. 

To currently apply as the unmarried partner of a British citizen (or someone who is settled in the UK or has status under the EU Settlement Scheme), you can lodge an application under Appendix FM if you meet the following definition (contained in the general section of Appendix FM):

“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”.

So, as a starting point, the applicants would need to provide evidence that they have lived together at the same address for at least two years.

However, this is not consistent with unmarried partner definition in other visa categories. 

Appendix Relationship with Partner has applied to many different categories of application, including Skilled Worker, Global Business Mobility, High Potential Individual, Global Talent and Innovator Founder among many others. The definition under this Appendix is already more flexible:

“Where the applicant and their partner are not married or in a civil partnership, they must have been in a relationship similar to a marriage or civil partnership for at least 2 years before the date of application.”

The accompanying guidance talks about being able to show the applicant is in a “durable relationship” which does not necessarily require the couple to have lived together for two years.  However, Appendix Relationship with Partner does not currently apply to Appendix FM applications and so the more traditional two years of cohabitation requirement has prevailed.

The new rules from 31 January 2024

However, from 31 January 2024, the definition of an unmarried partner under Appendix FM will be set out in the following terms:

“where the couple have been in a relationship similar to marriage or civil partnership for at least 2 years”.

This change is being made to the interpretation section of the Immigration Rules. This new definition clearly omits the once central requirement that the couple must cohabit in a relationship for two years, and instead the relationship will just need to be “similar to marriage or civil partnership” for a two-year period. This could have the ability to broaden the definition and type of applicants that can apply, as cohabitation may not be needed in some cases.

This update appears to be part of a move by the Home Office to simplify the definition of a partner across the different visa routes.

All eyes on the new guidance

Whilst the change to the definition of unmarried partner under Appendix FM certainly looks positive, it is yet to be seen how the change will be implemented and interpreted in practice. This will, in part, hinge on the caseworker guidance, which we would expect to be published the same day as the rule change, on 31 January 2024.  The guidance may illustrate examples of what caseworkers can now accept in assessing if a couple have been in a relationship similar to marriage or civil partnership for two years where they have not lived together throughout that period and the sort of evidence they will expect to see.

The Home Office may align the new guidance with Appendix Relationship with Partner in a nod towards consistency across the board in partner visa applications.  That would mean we could expect that where the couple have a child or one of the couple has been required to work or study overseas, these would be considered good reasons as to why there has not been two years cohabitation.

What this change does not address is the requirement to intend to live together in the UK, together with the need to show you have lived together whilst on the visa for extensions and Indefinite leave to remain. Thus, while this new change is welcome it is important to be mindful, as although this may recognise modern family arrangements and the challenges international couples may face in living together early in their relationship, the expectation to move to a more conventional relationship is still a key part of the immigration rules.

Under the current rules when applicants have had less conventional living arrangements, often due to work, we have been able to make the case that a couple have lived together across multiple addresses or with some gaps due to obligations elsewhere. The Home Office has been receptive to these situations in some cases.

It remains to be seen if this update to the rules is simply a clearer reflection of the longstanding practice or whether this will open the door to recognising relationships where the couple’s living arrangements have been less clear cut.  

In any event, this interpretive change, while small, does seem like a welcome step forward and we look forward to seeing how this will work in practice.

Further information

We will keep you updated on developments.  If you have any queries on the above or any other immigration matter, please contact a member of the immigration team.  

about the authors

Katie is a Partner in the immigration team and has over 10 years' experience across a wide spectrum of UK immigration matters, with particular expertise in applications made under Tier 1 of the Points Based System and complex personal immigration matters.  She regularly provides commentary on the workings of the UK Immigration Rules and is often involved in lobbying the Home Office, including in relation to the design of a future post-Brexit UK immigration system.

Tim joined the immigration team as a professional support lawyer in June 2019. He is a solicitor with extensive experience in corporate and private client immigration matters and is responsible for the immigration team’s knowledge management and development.