Can I Visit the UK While My Partner Visa Is Being Processed?
The crisis in Ukraine has led to enormous delays in Home Office visa processing and decision waiting times. Applications from outside the UK to settle in the UK as the spouse, partner or family member of a British citizen or settled person, which ordinarily take 12 weeks (3 months) to process, are currently taking up to 24 weeks (6 months) to be decided. Moreover, the priority and super priority visa services have been temporarily suspended for new family visa applications submitted outside the UK while the Home Office deals with Ukraine Visa Scheme applications.
As a result, many or our spouse visa, civil partner visa, unmarried partner visa, fiance visa and proposed civil partner visa clients are asking us whether it is possible for them to visit the UK (for example, to spend time with their fiancé(e) or spouse) while their partner visa is being processed, provided they comply with the terms of their visit visa and return to their country of nationality to collect their partner visa. This article answers that question.
Can I Visit the UK While My Partner Visa Application Is Being Processed?
The Difference Between Visa and Non-Visa Nationals
The situation is different for visa and non-visa nationals as distinguished in section VN 1.1 of Immigration Rules Appendix Visitor: Visa national list. Visa nationals, unlike non-visa nationals, require entry clearance prior to travel to the UK as a visitor.
Non-visa nationals, conversely, do not require entry clearance prior to travel to the UK as a visitor. Visitors from these countries, legally, make applications at the border for permission to enter the UK. This is the case even if you enter the UK through e-gates without anyone stamping your passport. (It should be noted that non-visa nationals are required to obtain entry clearance in some circumstances, for example, if they intend to marry in the UK or visit the UK for 6 months or more.)
The short answer to the question of whether you can travel to the UK as a visitor while your application for entry clearance as a partner is being processed is as follows:
- Visa nationals cannot travel to the UK as visitors while their out-of-country applications are being decided;
- Non-visa nationals may travel to the UK as visitors while their out-of-country applications are decided; however, doing so involves some risk.
The Home Office’s One Application at a Time Rule
Visa Nationals
The Home Office has a rule against multiple visa applications. This is set out in paragraph 34BB of the Immigration Rules:
34BB Except where one or more applications have been made under Appendix EU (see paragraph EU10 of Appendix EU):
(1) Where an applicant has an outstanding application for entry clearance or permission to stay which has not been decided (“the previous application”), any further application for entry clearance or permission to stay will be treated as an application to vary the previous application and only the most recent application will be considered.
Under this provision, making an entry clearance application as a visitor amounts, in effect, to withdrawing the partner visa application. Applying for a visit visa is regarded as a second application and will result in the partner visa application being varied to a visit visa application.
This is a bar to visa nationals travelling to the UK while their partner visa is pending. It is not a bar, however, for non-visa nationals. The reason for this is that non-visa nationals do not technically make an application for entry clearance – rather they make an application for leave to enter as explained below.
Non-visa nationals
The reason non-visa nationals can work around the Home Office’s one application at a time rule is because of a technical distinction between ‘entry clearance’ and ‘permission to enter’ in the Immigration Rules.
When visa nationals apply for a visit visa, they are applying for entry clearance. If they have not been granted entry clearance prior to arrival, they will be refused permission to enter at the border under paragraph 24 of the Immigration Rules.
Non-visa nationals, however, are exempt from having to apply for entry clearance. When non-visa nationals arrive at the border, they are simply seeking permission to enter at the border (again, even if they go through the e-gates).
If we refer above to paragraph 34BB, the Rules makes specific reference to “further applications for entry clearance or permission to stay,” which, upon a technical reading of the Rules, are distinct from applications for permission to enter. As such, this means it is possible for non-visa nationals to visit the UK while their applications for entry clearance as partners are pending. This is subject, however, to the risk of demonstrating contradictory intentions as set out below.
Contradictory Intentions
To meet the requirements of Immigration Rules Appendix V: Visitor, it is necessary to prove that you are a ‘genuine visitor’ as set out in V 4.2:
V 4.2. The applicant must satisfy the decision maker that they are a genuine visitor, which means the applicant:
(a) will leave the UK at the end of their visit; and
(b) will not live in the UK for extended periods through frequent or successive visits, or make the UK their main home;
A visit visa application arguably demonstrates a contradictory intention to an application for entry clearance as a partner. While the application under Appendix FM expresses an intention to make the UK one’s home, the visit visa application expresses an intention not to make the UK one’s home.
An intention to settle in the UK is a requirement of a partner visa application. Meanwhile, an intention to leave the UK is a requirement of a visit visa application. As such, the intentions are, arguably, contradictory – and therefore applying as a visitor provides an easy reason for the Home Office to refuse your partner visa application.
However, the intentions of a visit visa and a partner visa do not necessarily contradict each other. If you intend to visit the UK on this occasion and to settle in the UK only on a future occasion, then you arguably still meet the requirements of both applications in a non-contradictory way. The Upper Tribunal held in Oppong (visitor – length of stay) Ghana [2011] UKUT 00431 that the essential issue is the intention held at the time of entry, and a future intention to make an application does not contradict this:
“An essential requirement of entry clearance as a visitor is an intention to leave the United Kingdom after the period of the visit. The proposed stay in the United Kingdom is not permanent but transient, even if an applicant is likely to want to make a fresh application very soon after the proposed visit has ended.”
In these circumstances, it is especially important for non-visa nationals to bring strong evidence of their intention to return home to the UK border (for example, evidence of booked return flights), which they could show to a border officer if questioned upon entry. The existence of another application may have been flagged on the border officer’s system. Evidence of ongoing ties to the home country is also of assistance – such as family or work ties. The partner visa application will necessarily require the person to return to their home country in any event, as the applicant will be required to submit their passport to the visa application centre once a decision has been made.
A border officer, however, may not accept this argument that the intentions can be reconciled, especially if you provide no evidence of ties to your home country. They may regard your pending partner application as evidence that you do not intend to leave the country at the end of your visit – for example, in the eventuality that your partner visa application is unsuccessful. Therefore, there is a risk that you are turned away at the border, therefore wasting the cost of your flights and any other trip expenses. Moreover, it is possible your spouse visa application is refused on the basis that you have demonstrated a contrary intention not to settle in the UK.
We have provided letters of comfort for clients as further assurance for border officers that our clients intend to return to their home country at the end of their visit. If you use the e-gates, you are unlikely to be questioned at all.
Priority Visit Visa Service
Applicants may wish to note that although priority and super priority visa services are currently temporarily suspended for new study, work and family visa applications submitted outside the UK, priority and super priority services are available in the majority of overseas locations on an appointment basis for visitor visa application.
Keep My Passport Service
In terms of practically travelling to the UK as a visiting non-visa national with a pending partner visa application, you will need to select the ‘Keep My Passport’ service when applying for your partner visa. If you do not, the application centre will keep your passport while the partner visa is processed.
Applicants should note that the ‘Keep My Passport’ service can only be used when applying via the standard service. Therefore, applicants will need to choose between using a priority or super priority service and keeping their passport.
If you are a dual national, you may not need to select the ‘Keep My Passport’ option if you can give one passport to be processed and use the other for travel.
Contact our Immigration Barristers
For expert advice and assistance with a partner visa or visitor visa applications, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.
