Can an Asylum Seeker Get Married in the UK Before a Decision is Made?
In 2014, the UK Home Office put in place a requirement for 98% of ‘straightforward’ asylum applications to be processed within six months, but only five years later in 2019, the target was scrapped. As was reported by the Guardian in 2018, some asylum seekers have had to wait 20 years for a decision on their application. And to compound matters, the number of asylum applications pending for six months or more has been steadily rising since 2015 from ~10 to ~40.
With such a backdrop of rising delays, in some cases over 20 years, it is entirely understandable that an asylum seeker in the UK might want to get married without waiting for a decision from the Home Office.
Getting married as an asylum seeker while waiting for a decision
While there is no specific rule which prohibits an asylum seeker waiting for a decision from the Home Office from getting married, the process might not be entirely straightforward. This is because asylum seekers will be subject to the ‘referral and investigation scheme’ introduced by part 4 of the Immigration Act 2014. Under this scheme, non-EEA nationals who stand to benefit in immigration terms by getting married or entering into a civil partnership will be investigated to ensure their plans are legitimate.
Under UK law, anyone planning to enter into a marriage or a civil partnership is required to ‘give notice’ to a registry office at least 28 days before the ceremony. Once registered, all proposed marriages and civil partnerships in the UK are referred to the Home Office by the registering official if they involve a non-EEA national with limited or no immigration status in the UK. This does not mean that an asylum seeker waiting for a decision will be refused, but it does mean that the circumstances of the intended marriage or civil partnership will be carefully vetted.
Marriage investigations
Where a notice of intention to marry or enter into a civil partnership is referred from the registration officer to the Marriage Referral and Assessment Unit (MRAU), the primary focus will be on checking for evidence of a ‘sham marriage’. According to section 24 of the Immigration and Asylum Act 1999 (amended by section 55 of the Immigration Act 2014), a ‘sham marriage’ is one where:
one or both of the parties is not a British citizen, a European Economic Area (EEA) national or a Swiss national, and;
there is no genuine relationship between the parties to the marriage, and;
it is considered that either, or both, of the parties wish to enter into the marriage for the purpose of circumventing UK immigration controls, including under the Immigration Rules or the Immigration (EEA) Regulations 2006
Investigating officers will also ensure that there is no evidence of an intention to enter into a forced marriage or trafficking/slavery. If the intended marriage or civil partnership is to be investigated, the notice period is then extended from 28 to 70 days to allow time for the investigation to be carried out.
It is important to note that if you and your partner are investigated, this is a routine process as required under law. Your willingness to be fully cooperative and helpful to the investigator will be very important in ensuring a positive outcome. According to the Home Office guidance for marriage investigation, if the couple being investigated are fully compliant, “permission to marry may be granted, even where there are doubts about the relationship, if they are not compliant, the couple will be refused permission to marry”. This is important as if the marriage or civil partnership is assessed as being a sham, the Home Office may order one or both individuals to have their leave curtailed, removed, deported, or referred for criminal investigation for committing perjury or facilitation of illegal immigration.
Genuine couples caught up in sham marriage crackdown
There have been many examples of genuine couples who been unfairly treated during the course of an investigation. According to examples cited by the Guardian newspaper, couples have been subjected to ‘insulting’, ‘gruelling’ and in some cases degrading questioning and checks. In some cases, highly personal questions have been asked, and the Home Office have even carried our early morning visits to “check up on the number of toothbrushes”.
In one serious case of extreme behaviour by Home Office officials cited in the article, Qasim, 29, from Pakistan, and Debora, 33, from Portugal, who planned to get married was asleep at home when they were raided by four officials in January 2016. Debora explained, “we were questioned separately about our relationship and then Qasim was arrested, taken away and locked up in detention for four months before the Home Office finally accepted that our relationship was genuine”.
Should we register our intention to get married?
If you or your partner is an asylum seeker in the UK awaiting a decision, and you plan to enter into a genuine marriage or civil partnership, it is highly recommended that you speak to an immigration Solicitor before visiting your local registry office. An immigration Solicitor will assess the details of your case and ensure that there is nothing which may (even if innocent) give the Home Office a reason to conclude the ceremony will not be genuine. It is better to take a cautious approach rather than facing an adverse outcome due to no fault of your own.
In the event that you do wish to register your marriage, you should receive permission well within the 70 days of extended notice. If you do not, or you receive notification that the Home Office suspects the marriage is a sham, then it will become important to seek legal assistance.
Final words
Asylum seekers in the UK can get married or enter into a civil partnership, but it is important to do everything possible to not fall foul of the UK’s Government’s hostile environment policies and rules. If you are in a genuine and subsisting relationship and you cooperate fully with the Home Office if investigated, there is every reason to believe you will be able to get married. If any suspicions are aroused, however, matters may become more complicated. It is for this reason that seeking legal advice from an immigration solicitors as early as possible may prove invaluable.
Helpful changes for family members applying under the EU Settlement Scheme
Changes to Appendix EU and Appendix EU (Family Permit) to the Immigration Rules come into force on 6 October 2021. This post attempts to flag the significant changes that are likely to impact on current and future applications.
Joining family members
As far as Appendix EU is concerned, the first major change was flagged in CJ’s initial post on the statement of changes. This concerns those seeking indefinite leave to enter or remain under paragraph EU11A as a joining family member, or limited leave under Para EU14A. Such applicants still need to meet the same family relationship and residence requirements, but the requirement not to be in the UK as a visitor will be removed.
It is not clear how much of an impact this amendment will have but it is welcome in principle. Family members will have been affected by travel disruptions and restrictions resulting from the Covid-19 pandemic and this easing may assist those seeking to re-establish their rights of residence in the UK who may have ended up returning here as visitors.
As a consequence, the definition of “visitor” will also be deleted from Annex 1.
Family permits
Then we have the changes to Annex 1, which — with its never-ending list of definitions and gobbledygook sub-paragraphs — will leave readers with nightmares forever.
One set of changes, which is significant, is the insertion of express references to absences caused by Covid-19. I am very relieved that this has already been covered by Alex Piletska, whose use of plain English is positively refreshing!
The next set of changes all relate to the definition (in Annex 1) and the use (in all other relevant paragraphs of Appendix EU) of a “relevant document”. This is a document that some categories of applicants, such as dependent relatives, must have in order to have their family relationship recognised.
The main types of “relevant document” have so far included the following:
(a)(i)(aa) a family permit, registration certificate, residence card, document certifying permanent residence, permanent residence card or derivative residence card issued by the UK under the EEA Regulations on the basis of an application made under the EEA Regulations before (in the case, where the applicant is not a dependent relative, of a family permit) 1 July 2021 and otherwise before the specified date;
From 6 October 2021, this will instead read “a family permit (or a letter from the Secretary of State, issued after 30 June 2021, confirming their qualification for one)”. This may be a response to litigation begun earlier this summer to provide a solution to all of the applicants overseas who applied for a family permit before the end of the Brexit transition period on 31 December 2020, but who have not yet been issued with one.
Until recently, such applicants were being told that since 30 June 2021 there has been no power for the Home Secretary to issue family permits to enable their travel to the UK or even if such a power still exists, permits would not be valid for onward travel to the UK. We can only hope that the change will help smooth this issue out, But it is unclear how a “letter” will enable such applicants to come to the UK and there are bound to be applicants facing these issues in-country as well.
New statement of changes to the Immigration Rules: HC 617
On 10 September 2021 the Home Office published a statement of changes to the Immigration Rules (HC 617). It is 183 pages long and makes adjustments in quite a number of areas. Some of the main changes are:
Banning entry to the UK with an ID card rather than a passport (with exceptions for some existing residents)
Tweaks to existing relocation schemes for Afghans, including granting indefinite leave to remain from the outset
A new International Sportsperson route, consolidating what were the Tier 2 and Tier 5 sporting visas
Tweaks to Global Talent, making it slightly easier to get an endorsement, and doubling the number of awards that mean no endorsement is required
Changes to EU Settlement Scheme family permits, including “to allow a joining family member to apply to the EUSS whilst in the UK as a visitor”
Iceland and India being added to the Youth Mobility Scheme
A new “Appendix Settlement Protection” for refugees to get ILR
Incorporation of some coronavirus concessions into the Rules
As the explanatory memo (pdf) outlines, there are many other minor, technical or corrective changes. If any prove to be particularly important, we’ll highlight them. If you spot something earth-shattering, let us know.
The changes discussed below come into force on 6 October unless otherwise indicated.
ID cards are out
Last year the government announced that “From 1 October 2021, EU, EEA and Swiss national identity cards will no longer be accepted as a valid travel document and a passport will be required for entry to the UK”. The Immigration Rules are now being changed to that effect.
Paragraph 11(i) of the Rules says that someone seeking entry to the UK must produce “a valid national passport or other document satisfactorily establishing his identity and nationality”. From 1 October, this provision will be subject to a new paragraph 11A, which says that an ID card is not an acceptable alternative to a passport unless the holder is an existing resident with EU settled status or similar.
Afghan citizens
Paragraphs 276BA1 to 276BS4 in Part 7 of the Rules cover permission for Afghan citizens to come to the UK under two special schemes. These are the Afghan Relocations and Assistance Policy and the ex-gratia scheme. The paragraphs in question are being replaced by new text, rather than just amended.
One significant change is to paragraph 276BA1. This currently says that Afghans who qualify for these schemes will be granted permission to enter the UK for five years. In future, “they will be granted entry clearance, which will have effect on arrival in the UK as indefinite leave to enter”. In other words, their permission to be in the UK will not have an expiration date.
In paragraph 276BB1, the requirement for people availing of these schemes to be “in Afghanistan” is being removed. The same goes for dependants, in paragraph 276BF1. The effect is that people will be able to apply for these schemes from outside Afghanistan, which makes sense in view of recent events.
The grounds for refusing permission under these provisions are being slimmed down to just the general grounds for refusal in Part 9 of the Rules. At the moment, there are additional grounds for turning people away, including if “there are serious reasons for considering that the applicant constitutes a danger to the community or to the security of the United Kingdom”. It is hard to know what to make of this change: the Home Office is not about to let people into the UK if it considers them a security risk. It may be just a tidying-up exercise, and that any cases caught by this wording could also be addressed under the general grounds for refusal.
There is nothing on the new Afghan Citizens Resettlement Scheme, but the Home Office has separately published more information on that today.
New International Sportsperson route
At the moment there are two possible visas for professional sportspeople.
One is T2 Sportsperson and the other is T5 Creative or Sporting Worker. The names reflect the old categorisation of work visas into Tier 2 or Tier 5, which has been abolished but lingers on, ghost-like, in the otherwise meaningless prefixes T2 and T5.
All this is being swept away. There will now be one visa called International Sportsperson, although it will continue to cater for athletes coming to the UK for 12 months or less. The T5 label is being removed from the remaining temporary routes, so they will be called “Temporary Work – Creative Worker”, “Temporary Work – Seasonal Worker”, etc.
The main requirement for getting an International Sportsperson visa is to have an endorsement from the UK governing body of the relevant sport. Those wishing to stay for longer than 12 months must also speak basic English (level A1). These requirements are expressed as “points”, but they are in reality mandatory rules, since the only way to earn the points is to tick the boxes.
Table A
Points required (mandatory) Relevant rules Points available
Governing Body Endorsement ISP 5.1 50
Certificate of Sponsorship ISP 5.2 and ISP 5.3 10
Financial requirements ISP 7.1 to ISP 7.3 10
Table B
Points required (mandatory) where the permission applied for exceeds 12 months Relevant rules Points available
English Language at level A1 ISP 8.1 and ISP 8.2 10
This takes effect from 11 October. We’ll look to write a more detailed summary of the International Sportsperson route between now and then.
Global Talent
Quite a few changes are being made to Appendix Global Talent. This is the visa for people with “exceptional talent or exceptional promise” in various fields. Generally they must have an endorsement from a specific organisation in that field: Arts Council England for the arts and culture track, Tech Nation for the digital technology track, etc.
Those organisations seem to have given feedback on how it’s all working, which is being reflected in changes to the endorsement criteria. Those changes include:
evidence of exceptional talent/promise in arts and culture can include media coverage of the applicant’s work “as a named member of a group”, not just individually (see paragraphs GTE 3.3 and 3.4).
evidence of exceptional promise in digital technology can be accompanied by just one example, rather than two (GTE 7.4).
fast track endorsement will be possible for people who have held an approved fellowship or award from the Royal Society, Royal Academy of Engineering or British Academy in the past five years, rather than the past 12 months (GTE 8.2).
Various other changes are highlighted in the explanatory memo. The broad effect is to make it a little easier to get Global Talent endorsements.
Similarly, the list of “prestigious prizes” that qualify the recipient for a Global Talent visa without the need for an endorsement at all is being expanded. At present there are 72 such awards in Appendix Global Talent: Prestigious Prizes. Five of them are Nobel Prizes and six are Oscars, so the bar is pretty high.
The new list contains twice as many awards — I make it 145 — with a big expansion in science, engineering, humanities and medicine. See page 63 of the statement of changes for the full list.
EU family permits
The non-EU family members of EU citizens with pre-settled or settled status under Appendix EU to the Rules need a type of visa called a “family permit” to join their sponsor in the UK. The rules governing these permits are in the inscrutable Appendix EU (Family Permit). Those rules are, according to the explanatory memo, being changed as follows:
to allow a joining family member to apply to the EUSS whilst in the UK as a visitor. From 6 October 2021, the temporary concession to this effect outside Appendix EU where certain joining family members are concerned, as currently set out in the EUSS caseworker guidance, will cease to operate.
technical changes to reflect the passing of the 30 June 2021 deadline for applications to the EUSS by those resident in the UK by the end of the transition period (though a late application can still be made where there are reasonable grounds as to why the person missed that deadline).
technical changes to reflect the fact that, as the Home Office has already confirmed to relevant stakeholders, a person who is exempt from immigration control can, if they wish, apply to the EUSS whilst they remain exempt, or they can apply once they have ceased to be exempt.
We’ll have to take their word for it, as there is no hope of puzzling out the amendments themselves. For anyone who wants to try, see pages 32 to 39 of the statement of changes document. (We’re also hoping to put out a separate, more detailed article on these changes later in the week.)
Youth Mobility Scheme: Iceland and India
Citizens of Iceland and India will in future be able to get a Youth Mobility visa. There will be 1,000 places for Iceland (population: 366,000) and 3,000 places for India (population: 1.4 billion). Indians interested in the visa will therefore enter a lottery (“invitation to apply arrangements”), as Japanese, Taiwanese, Hongkongers and South Koreans already do.
There are also extra requirements for Indian citizens. They must satisfy either paragraph YMS 4.5B or YMS 4.5C:
YMS 4.5B. This additional requirement is met where the applicant:
(a) holds a qualification equal to or above RQF level 6; and
(b) provides evidence of that qualification in the form of written confirmation from the issuing institution that they successfully completed their studies and graduated with the required qualification
RQF level 6 means an undergraduate degree. Alternatively:
YMS 4.5C. This additional requirement is met where the applicant:
(a) has a minimum of three years’ work experience in a professional role equivalent to an eligible occupation listed in Appendix Skilled Occupations; and
(b) provides evidence of that work experience in the form of either:
(i) formal payslips from the applicant’s employer showing the applicant’s job title and employer’s name; or
(ii) payslips accompanied by a letter from the applicant’s employer, on the employer’s headed paper and signed by a senior official, confirming the payslips are authentic.
Appendix Skilled Occupations lists roles that can be sponsored for a Skilled Worker or Intra Company Transfer visas. The difference with Youth Mobility compared with those routes is that there is no need for employer sponsorship.
When the government first announced that Indians would get Youth Mobility visas, it said that they would need to “be able to express themselves in the language(s) of the host country”, but that seems to have been dropped as there is no mention of an English language requirement.
None of this takes effect until 1 January 2022.
Settlement for refugees
People with refugee status or humanitarian protection can apply for settlement in the UK after five years. This is normally a formality, although the Home Office does reserve the right, in theory, to send people back where they came from if they are no longer in need of refuge.
The statement of changes introduces a new Appendix Settlement Protection. The explanatory memo says that this is to “provide greater clarity”, rather than to change the substance of the refugee settlement rules. These are currently in paragraphs 339R, 339S and 339T in Part 11 of the Rules, which are being deleted.
The revised rules say that, where someone is refused settlement but is still entitled to refugee status or humanitarian protection, they will get a 30-month extension of permission to stay instead. There are separate provisions for main applicants and for dependants; the rules for the latter say that a partner applying for settlement must be in a “genuine and subsisting relationship” with their sponsor.
Coronavirus concessions
Various ways in which the Home Office promises to go easy on migrants affected by coronavirus are being written into the Rules, rather than being left as guidance. The concessions being incorporated in this way cover:
Tier 1 (Entrepreneur) visa holders unable to fulfil the job creation requirement
Skilled Workers and Sportspersons who began working before their visa was granted
Covid-related absences from the UK for people with EU pre-settled status; existing guidance is being replaced by changes to Appendix EU
We’re planning a separate follow-up article on this aspect of the statement of changes, so will leave it at that for now.
