The Legal 500

The Civil Partnership Act 2004 (

The Act also creates new business – and problems – for immigration lawyers, as its rules do not (yet) enable the Home Office’s Immigration and Nationality Directorate to fully meet its declared commitment to treat civil partners in ‘precisely the same way as it treats spouses’. The Immigration Rules (the statement of practice followed by the Home Office which regulates entry into, and the stay of persons in, the UK, under s3(2) of the Immigration Act 1971), have therefore been amended so that existing provisions covering spouses and financé(e)s now also cover civil partners and proposed civil partners.

Before 5 December, those people in same-sex relationships who wanted to come to the UK could do so under the rules covering unmarried partners. These rules cover both opposite sex and same-sex couples. However, the need to provide proof of living together in a relationship ‘akin to marriage’ for at least two years has proved difficult for many couples. The Act, therefore, provides three different ways for same-sex couples to come to the UK:

• as a civil partnership visitor;
• as a proposed civil partner, and
• as a civil partner under a recognised overseas regime.

Coming to the UK to Form a Civil Partnership
So that the Act complies with measures affecting marriage introduced by ss19-25 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, a person subject to immigration control will only be able to give notice of a civil partnership if:

• they have been granted leave to enter the UK as the proposed civil partner (equivalent to leave to enter as a financé(e) for opposite sex couples) of someone who is a British citizen or who has indefinite leave to remain (settlement) in the UK, or is an EEA national living in the UK;
• they have been granted leave to enter the UK under a civil partnership visitor visa in order to register a civil partnership in the UK;
• they have written permission from the Secretary of State in the form of a Certificate of Approval; or
• they have settled status in the UK.

Example 1
A Thai national wants to come to the UK to enter into a civil partnership with his/her same-sex British partner who is living in the UK. The following steps need to be taken:

1) The Thai national must apply for entry clearance at the British Consulate General in Bangkok to come to the UK as a proposed civil partner (using form VAF2). If granted, leave to enter the UK will be given for six months, but there will be a prohibition on working.

2) Once the Thai national is in the UK, the couple must give notice of their proposed civil partnership to one of the permitted registration authorities.

3) The couple can then register their civil partnership, but before the expiry of the six-month visit visa, the Thai national can apply for further leave to remain in the UK on the basis of being a civil partner of a British citizen. Leave to remain will be given for an initial period of two years and the Thai national will be allowed to work. At the end of the two-year period, the Thai national will, if the relationship subsists, be able to apply for indefinite leave to remain (settlement) in the UK.

As in Example 1, it was always intended that, if someone had entered the UK as a proposed civil partner (financé(e)), they would be able to switch to civil partner once their civil partnership had been registered – as fiancé(e)s are able to switch to spouses. Unfortunately (as at the time of writing this article), there is still a gap in the drafting of the amended Immigration Rules and the words ‘proposed civil partner’ have not been included at the end of para 284(i). However, the Home Office seems to be taking a pragmatic approach to further leave to remain applications, and is processing such applications despite the omission in the rules.

Example 2
A Japanese national wants to come to the UK to enter into a civil partnership with his/her same-sex American partner who is in the UK on a 60-month work permit. The following steps need to be taken:

1) The Japanese national must apply for entry clearance (using form VAF1) at the British Consulate General in Tokyo to come to the UK on a civil partnership visit visa. If granted, leave to enter the UK will be given for six months, but there will be a prohibition on working. The Japanese national must also have the intention to leave the UK before the expiry of the visit visa. As with Example 1 above, it would be wise to check what documents the relevant consulate requires.

2) The American national must apply for a Certificate of Approval by submitting a COA form to the Home Office with a fee of £135. The processing time is three weeks for 70% of applications.

3) Once the American national has been issued with the certificate of approval and the Japanese national is in the UK, they must give notice of their proposed civil partnership to one of the permitted registration authorities.

4) The couple can then register their civil partnership, but before the expiry of the six-month visit visa, the Japanese national must return to Japan and make another application – this time as the civil partner of a work permit holder – to return to the UK. If granted, leave to enter will be given for the same length of time as the American civil partner’s work permit.

Like the standard visitor visa, there is no provision for someone who has entered the UK on a civil partnership visit visa to switch (change immigration category while in the UK) to civil partner once his or her civil partnership has been registered.

The example above may seem a convoluted, time-consuming and expensive way of coming to the UK as a civil partner. However, as many countries do not recognise same-sex relationships (indeed in some countries a relationship between same-sex couples is prohibited), the civil partnership visitor visa may be the only route available. Indeed, because of the dangers posed to same-sex couples in countries where such a relationship is illegal, there was discussion about what the entry-clearance visa stamp should say – putting ‘civil partner’ on a visa stamp, for example, would be a declaration of the relationship. The compromise wording of ‘to join partner’ was eventually agreed.

Overseas relationships
There is provision in the Act for an overseas relationship to be treated in the same way as a UK civil partnership if the relationship falls within one of the specified relationships in Schedule 20 to the Act or is a relationship that meets the general conditions of s214. Schedule 20 includes, for example, registered partnerships in Denmark, Finland, the Netherlands, Norway and Sweden; life partnerships in Germany; and civil unions in Canada (Quebec), the USA (Vermont) and New Zealand.

Written by Alison Kelso, who works in the immigration department of Magrath & Co.
Tel: 020 7495 3003.

For more information please visit www.magrath.co.uk.