What is a Genuine and Subsisting Relationship?

If you are a spouse who wishes to join your partner in the UK, who is British or settled, the specified evidence for the relationship requirements set out in Appendix FM, including in relation to the genuine and subsisting relationship requirement, can seem scarce when compared to the financial requirements rules. The latter set out mandatory evidence that must be provided in order to prove that you meet or exceed the minimum threshold.

Section E-ECP.2.6 states that the relationship between the applicant and their partner must be a genuine and subsisting relationship. As an applicant, it can be difficult to determine precisely what this means and in turn, this can make it difficult to determine what type of evidence you may wish to use in your application.

What factors will the Home Office consider when assessing the genuine and subsisting relationship requirement?

The Immigration Directorate Instructions sheds some light on what factors may be taken into consideration when a caseworker assesses if your relationship is genuine and subsisting. Providing letters of correspondence addressed to you and/or your partner at the same address, any financial commitments you share together and evidence that the applicant and/or your partner have visited the other’s home country can be used as evidence in your application.

Case law also provides an insight into what to expect. In Naz (subsisting marriage – standard of proof) [2012] UKUT 40 the Entry Clearance Officer refused the application for the following reasons:

“It is reasonable to expect that in a genuine, subsisting, supporting and affectionate relationship…that there would be significant evidence of regular contact, signs of companionship, emotional support, affection, and abiding interest in each other’s welfare and wellbeing…I am not satisfied that you have genuinely formed a relationship and durable with outward signs of affection and companionship.” – para. 3

This is indicative that communication exchanged between you and your partner can be an important part of your application. However, there are few particularities on how you should communicate or by which means. For instance, in Goudey (subsisting marriage – evidence) Sudan [2012] UKUT 00041 (IAC) it was established that it is not a requirement to have to text your partner.

What does the outcome of Goudey (subsisting marriage – evidence) Sudan [2012] UKUT 00041 (IAC) mean?

In this case, it was deemed that evidence of telephone cards without confirmation on the number being called, was satisfactory.  It was also noted in this case that:

“The judge was therefore imposing his own view of how the parties could reasonably be expected to conduct their relationship as opposed to evaluating the consistent and supported evidence that was before him as to how they actually did.” – para. 10

Having said this, evidence of conversations on facebook messenger, whatsapp or email can often be useful to show that you and your partner are in regular contact with each other, although none of these are mandatory requirements.

What if my marriage did not follow traditional customs?

Customs and traditions of a marriage vary widely across the world.  The Immigration Appeal Tribunal decided in GA (“Subsisting” Marriage) [2006] UKAIT 46 that:

“An Immigration Judge, when assessing the subsistence of a marriage will plainly have to bear in mind the cultural context and the wide differences that exist between individual lifestyles, whether by choice, or by circumstances, or by economic necessity.” – para 14.

Therefore, caseworkers should bear in mind  the uniqueness of each wedding when making decisions. However, there are some limitations to this.

The facts  of TJ (Marriage – Telephone Relationship) Pakistan [2003] UKIAT 167

In this case, the Immigration Appeal Tribunal heard an appeal against the determination of a dismissed appeal of an entry clearance application as a spouse of a British citizen.

The question considered in this case was:

“whether a person who entered into a telephone marriage that is not recognised under English law, and has never met or cohabited with her intended spouse, can be said to have family life for the purpose of Article 8” – para. 1

Article 8 (1) of the European Convention of Human Rights states:

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

Outcome

The appeal was dismissed. It was decided that:

“…dependency requires something more tangible and substantial than the emotions expressed in correspondence between people who have never met” – para. 19

It is important to note however that this case was particularly unique, given the fact that the spouse of the Appellant was unable to travel due to a severe medical condition.

What else  do I need to know about my application?

The Immigration Directorate Instructions also provide guidance on factors that may be associated with a relationship that would not be considered genuine. Having few people attend your wedding or its reception and not sharing financial or domestic responsibilities are some of these factors. These examples, however, can sometimes be associated with an arranged marriage that is common amongst some cultures.

Contact our Immigration Barristers

Our immigration barristers regularly assist foreign national Spouses and Civil Partners to relocate to, and settle in, the UK with their British citizen or settled partners. For expert advice and assistance contact our immigration barristers and lawyers on 0203 617 9173 or via our enquiry form below.