Immigration options for spouses, civil partners, unmarried or same-sex partners of members of HM Armed Forces

The Immigration Rules contain specific provisions for dependents of members of HM Armed Forces, including spouses, civil partners, unmarried or same-sex partners, to make applications for entry clearance, leave to remain or indefinite leave to remain in the UK. The family members of the Armed Forces members do not need to satisfy the more stringent requirements of Appendix FM of the Immigration Rules.

Limited leave to remain

An application for leave to remain can be submitted by the spouse, civil partner, unmarried or same-sex partner of a member of HM Armed Forces in the UK.  Alternatively, entry clearance may be sought from abroad. If the family member is in the UK already, the Immigration Rules, as currently in force, do not impose any immigration status requirements. Therefore, if the family member only has a short period of leave left, or has no valid leave to remain at all, an application can still be submitted.

The requirements for leave to remain as a partner of a member of HM Armed Forces are contained within paragraph 276AD of the Immigration Rules and require the following:

• The applicant is married to, or the civil partner, unmarried or same-sex partner of an armed forces member who is exempt from immigration control under section 8(4) of the Immigration Act 1971 (members of the Armed Forces will be exempt from immigration control while they are still serving);
• Each of the parties intend to live with the other as his/her spouse, civil partner, unmarried or same-sex partner and the marriage, civil partnership, or relationship akin to a marriage or civil partnership is subsisting;
• There is adequate accommodation available in the UK;
• The parties will be able to maintain themselves adequately in the UK without the need to rely on public funds;
• The applicant does not intend to stay in the UK beyond the period of his/her spouse’s, civil partner’s, unmarried or same-sex partner’s enlistment in the armed forces;
• Where the applicant is applying as the unmarried or same-sex partner of an armed forces member they must meet the following additional requirements:
  • Any previous marriage or civil-partnership or other relationship akin to marriage must have permanently broken down;
  • The applicant must not be so closely related to the armed forces member that they would be prohibited from marrying in the UK;
  • The applicant and the armed forces member must have been living together in a relationship akin to marriage or civil partnership for a period of at least 2 years.

It is important to note that the applicant need only show that they will be able to maintain themselves (and any dependents) ‘adequately’ in the UK without the need to rely on public funds. The term ‘adequately’ means that, after income tax, national insurance contributions and housing costs have been deducted from the applicant’s and/or their family member’s income, they must show the level of income that would be available to them if they were in receipt of Income Support which, for partners, is currently £111.45 per week.

Upon the UK Border Agency being satisfied that these requirements have been met, the application will be successful and the applicant will be granted leave to remain in the UK as a partner of a serving member of HM Armed Forces. The period of leave granted will be for either; a) the length of the armed forces member’s enlistment/training/posting, or b) for a period not exceeding 4 years, whichever is the shorter period.

Indefinite leave to remain

An application for indefinite leave to remain as a partner of a member of HM Armed Forces can be submitted by the spouse, civil partner, unmarried or same-sex partner of an armed forces member in the UK.

The requirements for indefinite leave to remain in the UK as the spouse, civil partner, unmarried or same-sex partner of an armed forces member exempt from immigration control are set out within paragraph 276U of the Immigration Rules and require the following:

• The applicant must be married to, or the civil partner or unmarried or same-sex partner of a member of the armed forces who is exempt from immigration control under s8(4)(a) of the Immigration Act 1971 and has at least 5 years’ continuous service;
• The parties have met each other;
• The parties have been married, or formed a civil partnership or relationship akin to marriage at least 2 years ago;
• Each of the parties intends to live permanently with the other as his or her spouse, civil partner, unmarried or same-sex partner;
• The marriage, civil partnership or relationship akin to marriage must be subsisting;
• The applicant has, or has last been granted, leave to enter or remain in the UK as the spouse, civil partner, unmarried or same-sex partner; and
• The applicant does not fall for refusal under the general grounds for refusal.

The general grounds for refusal require that the applicant be free from criminal convictions, or a certain period of time have elapsed (however, those with sentences of more than 4 years imprisonment will be prevented from applying, no matter how long ago their sentence was completed), that the applicant has not used deception in an application for leave to enter or remain in the UK previously, or is the subject of a deportation order.

It is important to note that in accordance with paragraph 276U, as currently drafted, there is no maintenance and accommodation requirement to be satisfied. As a consequence, the applicant does not need to demonstrate any minimum level of income, although the immigration rules do impose an immigration status requirement.

British citizenship

Following the grant of indefinite leave to remain, it is open to the partner of a member of HM Armed Forces to make an application for naturalisation as a British citizen. The earliest that a naturalisation application can be submitted is one year from the date of the grant of indefinite leave to remain.

Our immigration barristers will be happy to provide advice and representation for members of HM Armed Forces seeking further leave to remain or settlement in the UK.

If you would like further advice on applying for further leave to remain or settlement as a member of HM Armed Forces then please contact our immigration barristers in Covent Garden, London on 0203 617 9173 or email info@richmondchambers.com