Partner Visa Extension & ILR Application Top Tips
When you have just been granted leave to enter or remain as a partner, an extension or ILR application is probably the last thing on your mind, but 33 or 30 months can pass very quickly! Considering preparatory steps throughout the period of leave can reduce the stress at the end of the process and the need to search for or obtain the documents required by the Immigration Rules, particularly Appendix FM-SE.
Extension and ILR applications are not necessarily easier than original applications; the requirements all still need to be demonstrated and updating evidence for the intervening period is required. This post is designed to give some practical tips to allow you to plan ahead, tips that might hopefully assist with a future application and make the process smoother.
Date for Renewal and Timing
The biometric residence permit (BRP) you hold or the vignette endorsed in your passport (if you are here as a fiancé(e)) will confirm the date leave expires. You can read more about BRPs in an earlier blog post. In order not to become an overstayer it is essential that a further application for leave to remain is made before or on the date leave expires. An application submitted minutes or seconds after the deadline will have implications for not only immigration status but the right to work and potentially future applications.
It is possible to make an application for an extension application 28 days in advance of the expiry of leave when applying for an extension of leave.
The applicant should be advised that, where eligible, they should make a valid application for further leave to remain as a partner no more than 28 days before their extant leave is due to expire, or no more than 28 days before they have completed 30 months in the UK with such leave.
Where a person submits an Appendix FM partner application up to 28 days before they have completed 30 months in the UK with leave to enter or remain as a partner under Appendix FM, that person will be considered to have met the required continuous residence period of 30 months as a partner.
Where an applicant currently has extant leave to enter or remain as a partner under Appendix FM at the date of application (excluding a grant of limited leave to remain as a fiancé, fiancée or proposed civil partner), that period of extant leave, up to a maximum of 28 days, will be added to the period of leave to remain that they are being granted as a partner. An applicant with extant leave in this scenario will therefore be granted a period of leave to remain as a partner slightly in excess of 30 months. A person who applies more than 28 days before their leave is due to expire or they have completed the relevant qualifying period may not meet the requirement to have completed at least 60 or 120 months in the UK with relevant leave to remain in order to apply to settle and may instead need to apply for a further period of limited leave.
It is therefore vital to make a note of the date leave expires and ensure preparations begin well in advance. There is no advantage to applying for an extension more than 28 days in advance of your leave expiring. Importantly, this might result in having to apply for a further extension before completing the requisite period to apply for ILR.
Decision waiting times for applications inside the UK can be 8 weeks for further leave to remain applications and up to 6 months for an application for ILR. Priority services were available before the global pandemic and hopefully will resume for Appendix FM applications in the near future. Whether submitting an application for further leave or ILR, you will want to factor in the processing times as they will inevitably impact on planning for future travel.
Ordinarily you will need some form of identity document to make an application for further leave to remain in order to comply with paragraph 34 of the Immigration Rules as expanded upon in the Validation, variation and withdrawal of applications Version 3.0, guidance published 01 December 2020 guidance. You will need to produce a passport or identity document or rely on one that has expired. Again you will want to consider timing, if for example you are planning to apply for a new travel document or passport.
It is important to remember that just because UKVI or an ECO have previously accepted a marriage, civil partnership or fact of a divorce, it does not follow this will be accepted again. The relevant evidence must be provided. Appendix FM-SE sets out the evidence that you must provide and this will be reflected in the document checklist which accompanies an application. Unfortunately, if specified documents are not provided, UKVI does not go back over previous applications searching for evidence to cross check the requirements are met.
Therefore, you will want to ensure that you keep important personal documents such as a marriage certificate to one side ready to provide again to demonstrate you still qualify as a partner.
Although you may have met the suitability requirements in a previous application, there are questions on the form relating to your current suitability. It is therefore important to keep evidence of any matters that might arise during the intervening period. It is important to retain evidence of how a suitability issue was previously addressed; it might be necessary to address it again.
Continued Genuine and Subsisting Relationship
There is no specified evidence to demonstrate a genuine and subsisting relationship and a range of evidence from varying sources can be relied upon. A list of non-exhaustive factors can be found in Family Policy: Partners, divorce and dissolution Version 1.0, published 29 May 2019 guidance.
Ways of demonstrating a genuine and subsisting relationship might include photographs, messages or cards exchanged, social media posts, evidence of gifts given, trips taken or particular events and special occasions attended over the course of a relationship. Evidence of children born and joint responsibility for their upbringing may demonstrate a genuine and subsisting relationship.
It might therefore be helpful to put to one side evidence of any trips taken, a small selection of photographs with dates and details taken at regular intervals, receipts and screenshots of messages exchanged or social media posts at regular occasions.
If a particular family member or friend has in the past provided a letter of support and is likely to provide further updating letters, you might consider if any of your photographs include those individuals. Perhaps there might be a special occasion, visit or holiday taken together.
Couples who have joint responsibility for biological, adopted or step-children will want to consider putting aside additional evidence of this; letters from a nursery or school. Shared financial responsibilities can be evidenced, including a joint mortgage, tenancy agreement or a joint bank account. Putting to one side quarterly bills can assist in preparing, as this will be relevant to demonstrating cohabitation.
On an extension application there is not usually a need to submit as much evidence as you did on the initial application, but evidence of your continued relationship is vital.
You will need to demonstrate that your future intentions lie in the UK. Evidence of investments, or the purchase of property are all good ways to show this and you should consider retaining such evidence to substantiate these.
Evidence of Cohabitation
On any application for an extension as a partner or for ILR as a partner you will need to show you have continued to live together since the last grant unless there is a good reason that you have not, consistent with an intention to live permanently in the UK. My colleague examined this requirement in an earlier blog post.
If you are moving address, and before you cut links with a landlord/landlady or letting agent you might consider obtaining a letter confirming your residence during this period.
There are a variety of sources of evidence that demonstrates residence including joint bank statements, utility bills, council tax and individual bills/correspondence to the same address.
Selecting documents every quarter and putting them to one side can mean the requirement is much easier to demonstrate and there is no need to go searching for documents.
If there has been a period you have spent apart, for what is arguably a good reason, for example a period of study or work, evidence relating to this period should be retained for later use.
Absences from the UK
As we examined above, although as above there are no residence requirements as such, the further application form will ask for absences since your last grant of leave and the reasons for them. This might not present a difficulty if your travel is limited, but if you are a frequent traveller, it might be helpful to keep a record.
Although passports contain stamps and schedules can be produced from them, it is prudent to put bookings, and e-tickets to one side in case they are needed where stamps are not available or illegible. When storing bookings, do make sure to note any that are changed.
Financial Requirement and Accommodation
The minimum income requirement is a fundamental part of any application for further leave to remain or ILR. There are a variety of ways to meet the financial requirement through salaried and non-salaried income, self-employed income, salary and/or dividends from a company of which you are a director, property rental income, dividends and income from investments, stocks, shares, bonds or trust funds, pension income, insurance payments, maintenance payments and cash savings above £16,000 that have been held for at least six months, unless you can demonstrate that they have come from the sale of property or investments within the last 6 months.
In some circumstances, it is possible to rely on a combination of the above sources of income to satisfy the financial requirement.
Different considerations may apply if the Sponsor is in receipt of certain benefits.
As you will know from your initial application, Appendix FM-SE sets out the evidence that must be provided and applications can be refused if the requirements are not met or documents are absent.
You will therefore begin considering the financial position well in advance of six months prior to the date of application to ensure there are no difficulties in meeting the requirement. For example, cash savings will need to be held for a continuous six-month period unless they have come from the sale of property or from an investment. Withdrawal of any of the funds for a very short period during the six months could result in you being unable to meet the requirement.
Those who are self-employed or are relying on income derived from a specified limited company will need to rely on the last full financial year or an average of the last two full financial years. It is therefore important to consider organising and finalising the financial information relied upon prior to the date of application. This of course might take time and you might be reliant on a professional, for example an accountant, for advice.
You will need to consider your prospective accommodation at the date of application, and ensure the requirement can still be met.
English language tests are ordinarily valid for a 2-year period and must be from the list of approved test providers. The requisite level on a partner extension increases from level A1 to level A2, save for when you are applying for further leave having now entered into your marriage or civil partnership. An application for ILR will require evidence of level B1. There may be circumstances where it is arguable that reliance can be placed on a test taken more than 2 years before, in the event the qualification was accepted by the Home Office in a previous application and still appears on the approved list.
If you previously relied on UK NARIC, there will not be a difficulty relying on this again. You will need to ensure the correct level was met and assessed. Similarly if you relied on qualification from an educational institution in the UK you will be able to produce this again.
Those nationals of majority English speaking countries set out in Appendix FM will continue to rely on their passport.
Life in UK
If you are applying for ILR you are likely to be required to produce evidence of your Life in the UK Test. Life in the UK Tests do not expire, so this can be taken in advance. You might wish to factor in time to study for the test as well in order to be fully prepared.
Keeping Copies and Immigration Rules
As specialist legal representatives, we ensure full scanned copies of the entire application are kept before uploading or providing documents to UKVI. If you are not represented, it is important to consider doing the same to ensure that you are aware of everything that was submitted and relied upon on the last occasion.
Finally, it is vital to check the Immigration Rules prior to any further application, as the rules do change!
Contact Our Immigration Barristers
For more information on the requirements under the Immigration Rules, or to discuss an application under Appendix FM of the Immigration Rules, please contact our specialist immigration barristers on 0203 617 9173 or via the enquiry form below.