SET03 - Spouses

This is internal guidance for use by entry clearance staff on the handling of settlement in the United Kingdom (UK) visa applications made outside the UK. It is a live document under constant review and is for information only.

For guidance on applications made on or after 9 July 2012 please refer to Appendix FM which can be found at page 19 of the Statement of Changes in Immigration Rules.

All applications submitted before 9 July 2012 should be considered under the old Rules.

SET3.1 What is the definition of a spouse?

A spouse is the husband / wife of the sponsor.

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SET3.2 What is the definition of a sponsor?

The sponsor is the person to whom the applicant is married.

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SET3.3 How do spouses qualify?

Immigration Rules paragraphs 277 - 289

For the applicant to qualify for indefinite leave to enter (rules paragraph 281(b) (i)), the ECO must also be satisfied that:

  • the couple has been married for at least four years and living together outside the UK during that time;
  • the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he / she  is aged 65 or over at the time he/she  makes the application. See SET16 Knowledge of Language and Life in the UK (the KOL provision);
  • the applicant does not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974.

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SET3.4 What is 'present and settled'?

'Present and settled' means that the sponsor is either:

  • settled in the UK and, at the same time that an application under the Immigration Rules is made, is physically present in the UK; or,
  • is coming to the UK with or to join the applicant and intends to make the UK their home with the applicant if the application is successful.

'Settled' is defined in paragraph 6 of HC395 and means "free from any restriction on the period for which he / she may remain in the UK, and ordinarily resident in the UK".

'Ordinarily resident' means "having a regular habitual mode of life in a particular country, the continuity of which has persisted despite temporary absences".

If the sponsor has temporarily traveled abroad to accompany the applicant in making the application, this will not prejudice the sponsor's present and settled status.  Such absence from the UK is not of itself a reason for refusal.

Sponsors may be British citizens. Strictly speaking, a British citizen who has been resident abroad but who returns to the United Kingdom to live is not 'admitted for settlement'. However, if he / she expresses the intention of returning to the United Kingdom to reside, the ECO can regard him/her as present and settled in the UK.
 
For guidance on sponsors who are permanent members of the Diplomatic Service and comparable UK-based members of the British Council, HM Forces and DFID.

See SET06 Partners of members of the Diplomatic Service / British Council / HM Forces and DFID.

Where the sponsor has not been resident in the UK for some time, the ECO should take care to ensure that the maintenance and accommodation requirements will be met. See Maintenance and accommodation (MAA) section for more guidance.

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SET3.5 What is the age requirement?

Immigration Rules paragraph 277

An application by a spouse should be refused if:

  • The applicant will be aged under 18 on the date of arrival in the UK; or
  • The applicant's spouse will be aged under 18 on the date of arrival in the UK.

In cases where the applicant is within a couple of months of their18th birthday, and the other party is 18 or over, the ECO has discretion to issue entry clearance but valid only from when the person under 18 has reached their 18th birthday.

When an applicant has reached the age of 18 but was married before attaining that age, the ECO will need to consider the question of whether the marriage is valid.

Although no child under 16 is able to contract a valid marriage in the United Kingdom, the laws of a number of countries do allow children under 16 to contract valid marriages in certain circumstances.

There are two requirements which have to be met before an overseas marriage with one party under 16 can be recognised under the laws of the United Kingdom:

  • the marriage is valid in the country in which it took place (that is, it is legal for parties under 16 to marry and the marriage itself complied with the formal requirements of the country in which it took place);
  • both parties to the marriage had the legal capacity under the law of their domicile to marry each other (that is, the law of their domicile allowed marriage with a person under 16, and they were free to marry in other respects).

The English courts are not prepared to allow persons domiciled in England and Wales to escape the prohibitions in section 1 ('Marriages within prohibited degrees') and section 2 ('Marriages of persons under the age of 16') of the Marriage Act 1949 by marrying abroad, and have found that a man domiciled in England cannot lawfully enter into marriage with a girl under 16 (Pugh v Pugh [1951] 2 All ER 680).

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SET3.6 What evidence is required of 'intention to live together'?

Intention to live permanently with the other means an intention to live together, evidenced by a clear commitment from both parties that they will live together permanently as husband and wife immediately following the outcome of the application in question or as soon as circumstances permit.

In assessing this part of the Rules it is useful, if possible, to have the views of both parties tested by the ECO. Where both partners are clearly committed to stay together irrespective of whether they live in the UK or not, the intention to live together will be shown. However, if it is clear that the sponsor will not leave the UK to live with the applicant elsewhere should the application for entry clearance be refused, the ECO will need to examine the reasons for this and how this bears on the relationship between the parties.

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SET3.7 Tribunal decisions on the intention to live together

In a case considered in the High Court in November 1996 Keen J held that:

'The concept of intention is no doubt a complex one, but it appears to me that one can indeed have a genuine intention, notwithstanding that the carrying out of that intention is dependent on, or could be frustrated by, some extraneous event.'

He went on to conclude that the requirement of the Rules relating to the intention of the parties to the marriage could be met where the British citizen (or legally resident foreign national) spouse insisted on remaining in the United Kingdom. In other words, a conditional intention to live together could be sufficient to meet the 'intention to live together permanently' requirement.

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SET3.8 Residence after arrival in the United Kingdom

The timing and nature of a decision regarding residence, who took the initiative and the way in which the decision was reached may be important factors in assessing whether or not the couple intend to live together permanently. The ECO should consider:

  • If the couple have not discussed and agreed where they will live, if only in the short term, why is this?
  • If the couple have discussed where they will live; when, how and by whom was the decision taken?
  • Is the marriage conditional upon the applicant securing admission to the UK?
  • If the marriage is conditional upon this, who made the condition and why?
  • If the application is unsuccessful would the sponsor live with the applicant in his / her present country of residence or elsewhere?

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SET3.9 Is there a requirement to have met?

Yes.

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SET3.10 Tribunal decisions on the requirement to have met

There have been a number of Tribunal determinations on how to interpret the phrase 'to have met'. The following determinations are intended for guidance only.

The ECO should be wary of routinely referring to Tribunal precedents when compiling explanatory statements. With case law constantly evolving there is a danger that precedent may  be out of date by the time the ECO quotes it in support of a decision.

In Balvinder Singh, the Tribunal equated 'to have met' with 'to have made the acquaintance of'. They took the view that it would be difficult to argue convincingly that two infants lying in cots side by side could satisfy the requirement 'to have met' but that it would not be so difficult to argue that children of 11 or 12 could be acquaintances of each other.

In each case, whether the parties have made the acquaintance of each other will be a question of fact. There is no necessity for any meeting to have taken place in the context of the proposed marriage.

In Rewal Raj, a differently constituted Tribunal took the same view of 'to have met', that is, that it implies a requirement 'to have made the acquaintance of'.

In Abdulmajid Esmail Jaffer, the Tribunal endorsed the previous views and went on to say that 'to have met' meant something more than a mutual sighting. They also felt that a mere coming face-to-face followed by telephone or written contact would be insufficient to satisfy the rule, as would a family background together with such a face-to-face meeting. In their view the essential test of whether the rule had been satisfied was whether the couple had had a face-to-face meeting which in itself had resulted in the making of mutual acquaintance.

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SET3.11 Internet relationships and the requirement to have met

A relationship that has developed over the Internet would not satisfy the 'to have met' requirement unless the relationship included a personal face-to-face meeting between the couple concerned. Evidence of a face-to-face meeting might include a travel history, relevant email exchanges etc.

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SET3.12 What if a couple have not met?

If the couple have not met by the time the ECO makes a decision on the application (that is, if they have either not seen each other at all or not met in the sense of 'to have made the acquaintance of') all aspects of the application should still be considered in accordance with the other requirements of the Rules (that is, intention to live together, maintenance and accommodation etc) before any refusal notice is issued. Obviously, there will be cases where 'not having met' is the sole reason for refusal.

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SET3.13 What to do after an initial refusual on the grounds of having not met.

If, after an initial refusal on the grounds of not having met, the couple can satisfy the ECO that a meeting in the sense of 'making the acquaintance of' has since taken place, the ECO must review the original decision and consider whether refusal is still  maintained.

This review can take place after an appeal has been lodged. In the majority of cases, assessing whether or not this 'new evidence' meets the requirements of the Rules (see below) should be straightforward.

This review need not be on the basis of a fresh application and fee, so long as any appeal papers have not been requested for a hearing (AIT-11 / AIT-2). Where an appeal has been determined then a fresh application and fee will be appropriate.

If the ECO then considers that there is no impediment to the issue of an entry clearance, the applicant should be invited to withdraw any appeal that may have been lodged (although an appellant has the right to proceed with an appeal, whatever action is being taken by an ECO) and entry clearance may be issued on the basis that the other requirements under paragraph 281 have also been met.

Post must notify the AIT. Post must complete and email the withdrawal of decision letter: Withdrawal of decision letter (copy found in ECG Toolkit) to the AIT dedicated mailbox: eco.contact@dca.gsi.gov.uk and type 'withdrawal of notice of decision' in the subject heading.

If, despite having satisfied the criterion of having met, the application still falls to be refused on other grounds in the original Notice of Refusal, the ECO should maintain the decision and inform by letter the applicant and sponsor and AIT of the amended reasons for refusal. If an explanatory statement has already been despatched then a short addendum should be forwarded to the AIT quoting the Post reference number.

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SET3.14 Assesment of validity of marriage

The ECO must be satisfied that the parties are validly married to each other. Most applications will normally be made in the country where the marriage took place.
 
Enquiries about the marriage laws of other countries should be referred to ECCCAT.

The recognition under the law of England or Wales, or Scotland, or Northern Ireland, of any  marriage which took place outside the UK is governed by the following three questions:

  • Is the type of marriage one  recognised in the country in which it took place?
  • Was the actual marriage properly executed so as to satisfy the requirements of the law of the country in which it took place?
  • Was there anything in the law of either party's country of domicile that restricted his / her freedom to enter the marriage?

Domicile is a very important concept in English law.  It is the place which a person regards as his permanent home and with which he has the closest ties. It contains a dual element of:

  1. actual residence in a place; and
  2. an intention of remaining there permanently

For more guidance on domicile see SET15 Domicile.

Where one of the parties to a marriage abroad was domiciled in England and Wales at the time of the marriage, and there was a lawful impediment in English law (that is, he / she was under the age of 16; the parties were not respectively male and female; he / she was already lawfully married or a civil partner; the parties were related within the prohibited degrees), the marriage could not be recognised in England and Wales. The same considerations apply in relation to domicile and law in Scotland, and, separately, in Northern Ireland.

If the answers to the above questions are respectively 'yes', 'yes' and 'no' then the marriage will be treated as a marriage for the purpose of the 'spouse' paragraphs of the Rules, whether or not it is polygamous (but see separate guidance on dealing with applications from polygamous partners SET14 Polygamous marriages.

Where ECOs have material doubts over the recognition of the marriage in the country in which it took place, and / or over its having been properly executed so as to satisfy the requirements of the law of the country in which it took place, the onus is on the applicant to show that those doubts are misplaced.

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SET3.15 Evidence of marriage

In most cases a marriage certificate will provide satisfactory evidence that a marriage has taken place.

An original certificate or properly certified copy should always be obtained unless there are very exceptional reasons why one cannot be produced.

Beware of photocopies of marriage certificates; they may look genuine but their authenticity may be in doubt.

In countries where official registration of marriage is not compulsory (and official marriage certificates are not available) the ECO should normally interview husband and wife separately about the circumstances of their marriage so that a decision can be made on the balance of probabilities.

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SET3.16 Ceremonies which take place in foreign missions in the UK

Consular marriages and civil partnership ceremonies  that take place in foreign missions in the UK are not legal under UK marriage laws and are therefore not valid for entry clearance applications, unless the premises are approved by the local authority for the solemnisation of marriages / civil partnerships.
 
To check if a venue is approved:

Divorces that take place in foreign missions in the UK are not valid for the purpose of entry clearance applications.  The only valid way of divorcing in the UK and Islands (Channel Islands and Isle of Man) is by obtaining a decree absolute (not a decree nisi) from a civil court.

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SET3.17 Marriage by telephone

A telephone marriage is one where the exchange of vows or other marriage contract takes place over the telephone.

In order to determine the validity of the marriage under the law of England and Wales, or Scotland, or Northern Ireland, please refer to the three questions set out in SET14 Polygamous or potentially polygamous marriages for assessing the validity of a marriage, and the additional points below:

  • A telephone marriage celebrated whilst one of the parties is in the UK is not valid. This is because telephone marriages are not valid in the UK.
  • A telephone marriage, where the UK-based sponsor was overseas and both parties to the telephone marriage were in countries where a telephone marriage is recognised, may be valid.
  • For cultures where marriage consists of an offer made by a man and accepted by a woman, the marriage is considered as taking place in the country where the woman is.  If the woman is resident in the UK then a telephone marriage is not valid.  If the woman is resident in a country where telephone marriages are valid then a telephone marriage may be valid.

One of the Immigration Rules' requirements which is particularly relevant in the case of an applicant who has undergone a telephone marriage is the requirement that the parties to the marriage have met. (See SET3.10 Tribunal Decisions on the requirement to have met and SET3.12 What if a couple have not met? for more guidance on the requirement to have met).

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SET3.18 Marriage by proxy

A proxy marriage is where an appointed substitute (proxy) stands in for a party to the marriage at the ceremony. Sometimes proxies stand in for both parties.  Marriage by proxy is considered as having been contracted in the country in which the ceremony took place.

The law of the United Kingdom does not allow for proxy marriages to be contracted in this country, either by proxy or over the telephone.

The English courts have found that the United Kingdom recognises proxy marriages if they are valid under the law of the country in which they take place, provided they have been executed properly. If such marriages satisfy the three criteria set out at SET3.14, they will be valid under UK law. 

One of the Immigration Rules' requirements which is particularly relevant in the case of an applicant who has undergone a proxy marriage is the requirement that the parties have met. (See SET3.10 Tribunal Decisions on the requirement to have met and SET3.12 What if a couple have not met? above for more guidance on the requirement to have met).

There are a number of countries who do not allow proxy marriages to be contracted. If Post wish to refuse an applicant on the basis that a marriage has not been validly contracted or cannot legally take place, evidence relating to the marriage laws of the country must be evidenced. Without specific evidence the refusal is unlikely to be upheld. Post will have local knowledge if proxy marriages are legally accepted in the country. 

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SET3.19 No ceremony required

If no ceremony is required under the laws of a particular country and a marriage can be concluded by an exchange of promises, it may be difficult to determine the country in which the marriage has been celebrated and under which law it should be considered. The ECO may need to defer a decision on the issue of an entry clearance and request advice from ECCCAT.

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SET3.20 Forced marriage

When dealing with a reluctant sponsor, or where there are other factors that point to a forced marriage being an issue, ECOs must follow the guidance given in the Forced Marriage Code of Practice which can be found in the content link of the Entry Clearance Toolkit.

The public version of the Forced Marriage Code of Practice: Chapter 8 Family members (Annex A2-Forced marriage).

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SET3.21 Is there provision for bereaved Spouses?

Although rare, cases can occur where a sponsor dies before his/her spouse is able to complete the probationary period and apply for indefinite leave to remain (ILR).

In the unlikely event that the ECO receives such an application overseas, the details of the application should be referred to the UK Border Agency  for a decision, using the HOReferrals mailbox.  In such cases the UK Border Agency may grant ILR providing the relationship was subsisting at the time of the sponsor's death.

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SET3.22 What is the endorsement for spouses?

See ECB13 Visa endorsements and conditions  

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SET3.23 What immigration conditions apply upon entry to a spouse applicant?

The applicant will normally be admitted for an initial period of 27 months.

After satisfactory completion of this period, indefinite leave to remain (ILR) may be granted on application to the UK Border Agency.

However, where an applicant:

  • has been married to the sponsor for at least four years and they have been living together outside the UK during that time; and
  • has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he / she is aged 65 or over at the time of the application (see SET16 Knowledge of Language and Life in the UK - The KOL provision); and
  • the sponsor has (at the date of decision on the application) a right of abode/indefinite leave to enter; then Indefinite Leave to Enter (ILE) may be granted.

Where an applicant has satisfied all of the requirements for ILE, except the KOL requirement, the applicant should be granted 27 months leave to enter. During this time they can, at any point, satisfy the KOL requirement and then apply for indefinite leave to remain (ILR) in the UK.

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SET3.24 Do spouses have the right of appeal?

Yes, there is a full right of appeal

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SET3.25 What is the refusal wording for spouses?

See Wording for refusals: examples by category or wording for statements (can be downloaded under 'Related documents' on the right of this page).

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