Meeting the 5year route to settlement as a Partner or Parent: Your frequently asked questions answered

(1)What are the two routes to settlement as a Partner or a Parent?

 

Appendix FM provides two routes to settlement on the basis of family life as a partner or parent. These are a 5-year route and a 10-year route where:

 

  • the 5-year route as a partner or parent is for those who meet all of the relevant suitability and eligibility requirements of the Immigration Rules at every stage.

  • the 10-year route as a partner or parent applies: in respect of applications for leave to remain, to those who meet all of the suitability requirements, but only certain of the eligibility requirements as a partner or parent where paragraph EX.1. of Appendix FM applies and is met. Paragraph EX.1. is not an exception to the Rules as a whole, but to certain eligibility requirements for leave to remain under the 5-year partner and parent routes under Appendix FM; or where entry clearance or leave to remain is granted following consideration under paragraph GEN.3.1. or GEN.3.2. of Appendix FM and in light of the exceptional circumstances to which that paragraph refers.

Paragraphs 276ADE(1)-DH of Part 7 of the Immigration Rules provide for leave to remain on a 10-year route to settlement on the basis of private life in the UK. Such applications cannot be made from outside the UK.

For the 5year route to settlement,  the relevant  Guidance is Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0a  Family Life (as a Partner or Parent): 5-Year Routes, August 2017, Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes

For the 10year route to settlement,  the relevant  Guidance is  Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes, Appendix FM 1.0b: Family Life (as a Partner or Parent) and Private Life: 10- year Routes

 

(2) What are the application types under the 5year route to settlement?

 

The 5year route to settlement relates to applications for entry clearance to, and for leave to remain, further leave to remain and indefinite leave to remain in, the UK submitted on or after 9 July 2012 by an applicant who first applied for entry clearance or leave to remain on or after that date, as a:

 

  • partner – a fiancé(e), proposed civil partner, spouse, civil partner or person who has been living together with the sponsor in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application, and a person who is: -a British Citizen; or -in the UK with limited leave as a refugee or person granted humanitarian protection; or -present and settled in the UK; or

  • (in the UK) bereaved partner (other than a fiancé(e) or proposed civil partner) of a British Citizen or person settled in the UK; or

  • parent of a British Citizen child living in the UK or a settled child living in the UK.

 

(3)What is the approach to considering applications?

 

A two stage approach applies.

 

  • First, the decision maker must consider whether an applicant meets the requirements of the Immigration Rules without consideration of exceptional circumstances under paragraph GEN.3.2. of Appendix FM, and if they do, leave under the relevant Rules should be granted. Applications for leave to remain failing to meet the requirements under the 5-year partner or parent route will be considered for leave to remain under the 10-year partner, parent and private life routes as appropriate.

  • Second, if an applicant for entry clearance or leave to remain as a partner, child or parent under Appendix FM does not otherwise meet the relevant requirements of the Immigration Rules, the decision maker must move on to consider, under paragraph GEN.3.2. of Appendix FM, whether, in the light of all the information and evidence provided by the applicant, there are exceptional circumstances which would render refusal a breach of ECHR Article 8 because it would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from the information provided by the applicant would be affected. If there are such exceptional circumstances, entry clearance or leave to remain should be granted (on a 10-year route to settlement). If not, the application should be refused.

 

(4) In summary, what are the application types under the 10year route to settlement?

 

An applicant in the UK can apply directly for the 10-year partner, parent or private life routes using form FLR(FP), e.g. where they know they cannot meet certain of the eligibility requirements of the 5-year routes.

 

In every application or claim where the decision maker is considering family or private life in the UK, consideration must be given to the 10-year of partner, parent and private life routes, as appropriate to the facts of the specific case.

 

Applications for leave on the 10-year routes to settlement cannot be made from outside the UK and must be made in the UK.

 

10-year Partner route:

 

The 10-year partner route is available to those who are in the UK as the partner of someone who is British or settled in the UK or is in the UK with limited leave as a refugee or granted humanitarian protection (who cannot benefit from provisions under Part 11 of the Immigration Rules regarding pre-flight family members).

 

The requirements to be met under the 10-year partner route are set out in paragraph R-LTRP.1.1.(a), (b) and (d) of Appendix FM.

 

10-year Parent route – Family Life as the Parent of a Child in the UK:

 

The 10–year parent route provides a basis on which leave to remain can be granted to a parent who has responsibility for or access to their child following the breakdown of their relationship with the child’s other parent.

 

This route is for single parents who:

 

  • have sole parental responsibility for their child; or

  • are the parent with whom the child normally lives, rather than the child’s other parent (who is British or settled); or

  • do not live with the child (who instead lives with a British or settled parent or carer), but they have direct access in person to the child, as agreed with the parent or carer with whom the child normally lives, or as ordered by a court in the UK.

 

The parent route is not for couples with a child together who are in a genuine and subsisting relationship. An applicant can only apply for the parent route if they are not eligible to apply for the partner route.

 

A 10-year parent route is available to those who are in the UK and who meet all of the suitability and eligibility requirements at every stage.

 

The requirements to be met under the 10-year parent route are set out in paragraph R-LTRPT.1.1.(a), (b) and (d) of Appendix FM.

 

10-year private life route

 

The 10-year private life route is available to those who meet the suitability and eligibility requirements of paragraphs 276ADE(1)-DH at every stage.

 

Other considerations: Exceptional circumstances:

 

Where an applicant does not meet the requirements of the Rules under Appendix FM and paragraph 276ADE(1)-DH, the decision maker is required to go on in every case to consider whether there are exceptional circumstances which warrant a grant of leave outside the Rules on Article 8 grounds.

 

Where the Rules are not met but there are exceptional circumstances, leave outside the Rules should be granted.

 

Other considerations: Compassionate factors

 

Compassionate factors are compelling compassionate reasons on a basis other than family or private life under Article 8, which might justify a grant of leave to remain outside the Immigration Rules, even though the applicant has failed to meet the requirements of the Rules and there are no exceptional circumstances in their case.

 

While exceptional circumstances on the basis of Article 8 must be considered in every case falling for refusal under the Rules, compassionate factors only need to be considered if they are specifically raised by the applicant.

 

Compassionate factors are, broadly speaking, exceptional circumstances, e.g. relating to serious ill health, which might mean that a refusal of leave to remain would result in unjustifiably harsh consequences for the applicant or their family, but not constitute a breach of Article 8.

 

If any compassionate factors are raised in the application, the relevant guidance is , IDI, Chapter 1 Section 14, Leave Outside the Rules (LOTR), Section 14: leave outside the rules

 

(5) 5year route: What is the financial requirement?

 

Since 9 July 2012, the Immigration Rules in Appendix FM have contained a financial requirement to be met by a person applying for entry clearance to, leave to remain in or indefinite leave to remain in the UK as the non-European Economic Area (non-EEA) national partner or dependent child of a person who is:

 

  • a British Citizen; or

  • present and settled in the UK; or

  • in the UK with refugee leave or humanitarian protection.

 

Since 1 December 2013, the Immigration Rules in Appendix Armed Forces have also contained a financial requirement to be met by a person applying for entry clearance to, leave to remain in or indefinite leave to remain in the UK as the non-EEA national partner or dependent child of a person (British or foreign or Commonwealth) who is a member of HM Forces (as defined in paragraph 2(d) of Appendix Armed Forces).

 

Unless exempt the applicant must meet the financial requirement in the form of a minimum income requirement, also referred to as a minimum income threshold. The minimum income threshold for a Partner applying under Appendix FM from 9 July 2012 and for a Partner applying under Appendix Armed Forces from 1 December 2013, without dependent children, is £18,600.

 

Where the application includes sponsorship of a child at the same time (or at any time before the applicant reaches settlement), or where the sponsor is already sponsoring a child, the minimum income threshold increases and there is a higher financial requirement to be met.

 

An additional gross annual income of £3,800 is required for the first child sponsored in addition to the partner and an additional £2,400 for each further child. The level of the financial requirement will therefore be for example:

 

  • Partner with no children – £18,600.

  • 1 child in addition to the partner – £22,400.

  • 2 children in addition to the partner – £24,800.

  • 3 children in addition to the partner – £27,200.

 

If the higher financial requirement and other requirements are met, the applicant child or children will be granted leave in line with the applicant partner. If the partner and a child or children are applying together, and the higher financial requirement and other requirements are not met, all the applicants will be refused.

 

The financial requirement does not apply to a child who:

 

  • Is a British Citizen (including an adopted child who acquires British citizenship);

  • Is an EEA national (except where the child is a child of a former relationship and does not have a right to be admitted to or reside in the UK under the Immigration (EEA) Regulations 2006 or the Immigration (EEA) Regulations 2016);

  • Is settled in the UK or who qualifies for indefinite leave to enter; or

  • Qualifies under Part 8 or Appendix Armed Forces of the Immigration Rules in a category to which the financial requirement does not apply.

 

(6) 5year route- Who needs to meet the financial requirements?

 

The financial requirement – in the form of the minimum income requirement, for those not exempt from it – needs to be met by those making an application in the following categories of Appendix FM:

 

  • Family Life as a Partner

  • Family Life as a Child of a person with limited leave as a Partner

 

Under paragraph A280(b) of Part 8 of the Immigration Rules, the financial requirement also needs to be met by those applying from 9 July 2012 as a child under paragraph 314(i)(a) or (d) (unless both parents are settled), or paragraph 316A(i)(d) or (e), where a parent who has adopted the child, or is doing so, is themselves subject to the financial requirement because they have or are applying for entry clearance or limited leave to remain as a partner under Appendix FM. Otherwise, the maintenance requirement applicable to the child applicant will be that contained in the relevant adoption rule in Part 8.

 

The financial requirement also needs to be met by those making an application in the following categories of Appendix Armed Forces unless otherwise stated in that Appendix:

 

  • Partners of members of HM Forces in Part 4 (where specified)

  • Children of members of HM Forces in Part 7 (where specified)

 

Those making an application as the child of a person with entry clearance or limited leave to remain as a parent who is not themselves subject to the financial requirement in the parent route are also not required to meet the financial requirement but, like their parent, a requirement for ‘adequate’ maintenance.

 

(7) 5year route- How is the  financial requirement met?

 

Where the applicant has to meet the minimum income threshold, the financial requirement can generally be met in the following five ways:

 

  • Income from salaried or non-salaried employment of the partner (and/or the applicant if they are in the UK with permission to work). This is referred to as Category A or Category B, depending on the employment history.

  • Non-employment income, e.g. income from property rental or dividends from shares. This is referred to as Category C.

  • Cash savings of the applicant’s partner and/or the applicant, above £16,000, held by the partner and/or the applicant for at least 6 months and under their control. This is referred to as Category D.

  • State (UK or foreign), occupational or private pension of the applicant’s partner and/or the applicant. This is referred to as Category E.

  • Income from self-employment, and income as a director or employee of a specified limited company in the UK, of the partner (and/or the applicant if they are in the UK with permission to work). This is referred to as Category F or Category G, depending on which financial year(s) is or are being relied upon.

 

In exceptional circumstances in which refusal of the application could otherwise breach ECHR Article 8 and paragraph GEN.3.1. of Appendix FM applies, other credible and reliable sources of income, financial support or funds available to the couple may be taken into account under the minimum income requirement, under paragraph 21A of Appendix FM-SE ( having regard to section 10 of Immigration Directorate Instruction Family Migration: Appendix FM Section 1.7 Appendix Armed Forces Financial Requirement August 2017, Appendix FM 1.7: financial requirement

 

(8) 5year route- Is it possible to meet the financial requirement through “adequate maintenance” ?

 

Where the applicant’s partner is in receipt of any of the following benefits or allowances in the UK, the applicant will be able to meet the financial requirement at that application stage by providing evidence of “adequate maintenance” rather than meeting an income threshold:

 

  • Carer’s Allowance.

  • Disability Living Allowance.

  • Severe Disablement Allowance.

  • Industrial Injuries Disablement Benefit.

  • Attendance Allowance.

  • Personal Independence Payment.

  • Armed Forces Independence Payment or Guaranteed Income Payment under the Armed Forces Compensation Scheme.

  • Constant Attendance Allowance, Mobility Supplement or War Disablement Pension under the War Pensions Scheme.

  • Police Injury Pension.

 

If the applicant’s partner is in receipt of one of the above benefits or allowances on behalf of their child, the applicant will be able to qualify by meeting the financial requirement through “adequate maintenance”.

 

The evidence required to demonstrate that the applicant’s partner is in receipt of a specified benefit or allowance is specified in Appendix FM-SE.

 

The applicant will not need to meet the minimum income threshold. Instead, the applicant is required to demonstrate that they will be adequately maintained without recourse to public funds. The relevant guidance is set out in IDI Appendix FM 1.7a: maintenance

The minimum income threshold will apply at the next application stage if the applicant’s partner is no longer in receipt of one of these benefits or allowances at that time.

 

 

(9) 5year route- What sources are not permitted toward the financial requirement?

 

Income from the following sources will not be counted towards the financial requirement:

 

  • Any subsidy or financial support from a third party (other than child maintenance or alimony payments, academic maintenance grants/stipends or gifts of cash savings that meet the requirements specified in paragraph 1(b) of Appendix FM-SE), except where paragraph GEN.3.1. of Appendix FM and paragraph 21A of Appendix FM-SE apply.

  • Income from others who live in the same household (except any dependent child of the applicant who has turned 18 and continues to be counted towards the higher income threshold the applicant has to meet until they qualify for settlement).

  • Loans and credit facilities.

  • Income-related benefits: Income Support, income-related Employment and Support Allowance, Pension Credit, Housing Benefit, Council Tax Benefit or Support (or any equivalent) and income-based Jobseeker’s Allowance.

  • The following contributory benefits: contribution-based Jobseeker’s Allowance, contribution-based Employment and Support Allowance and Incapacity Benefit.

  • Child Benefit.

  • Working Tax Credit.

  • Child Tax Credit.

  • Universal Credit.

  • Unemployability Allowance, Allowance for a Lowered Standard of Occupation and Invalidity Allowance under the War Pensions Scheme.

  • Any other source of income not specified in Appendix FM-SE as counting towards the financial requirement.

 

(10) 5year route, financial requirement: What are the changes to Appendix FM after 10 August  2017 ?

 

Following the Supreme Court Judgments in MM (Lebanon) & Ors, R( on the applications of) v Secretary of State and another [2017] UKSC 10   and Agyarko and Ikuga, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 11 , the Statement of Changes in Immigration Rules HC 290, which came into effect on 10 August 2017, restructured Appendix FM such that it is now considered by the Secretary of State to provide a complete framework for her Article 8 decision-making in cases decided under it.

 

Appendix FM, supported by Appendix FM-SE (specified evidence) and Part 9 (for the relevant general grounds for refusal), now incorporates, aspects of Article 8 in  decision-making in family cases falling to be decided under it. In particular, under HC 290, implemented on 10 August 2017 for all applications decided from that date:

 

Where:

 

  • an application for entry clearance or limited leave to remain as a partner or child under Appendix FM does not otherwise meet the minimum income requirement, as specified in Appendix FM and, in respect of the evidential and other requirements, in Appendix FM-SE; but

  • refusal of the application could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child, (taking into account, as a primary consideration, the best interests of any relevant child affected by the decision),

 

then the decision maker will consider other credible and reliable sources of income, financial support or funds available to the couple in order to assess whether the minimum income requirement under Appendix FM is met. This provision is made by paragraphs GEN.3.1. and GEN.3.3. of Appendix FM, inserted by HC 290.

 

Those other credible and reliable sources of income, financial support or funds (such as a guarantee of third party support or the migrant partner’s prospective earnings) must enable the minimum income requirement to be met, in order for entry clearance or limited leave to remain to be granted on this basis. Where it is met, this will be granted under the 10-year partner route to ILR under Appendix FM, with scope for the applicant to apply in-country to switch to start the 5-year route if they subsequently meet the requirements for this.

 

Paragraph 21A of Appendix FM-SE, inserted by HC 290, sets out objective criteria by which decision makers will assess the genuineness, credibility and reliability of other sources of income, financial support or funds.

 

Those Appendix FM cases which would previously have fallen for consideration outside the Immigration Rules on Article 8 grounds – subject to the test of whether there were exceptional circumstances which meant refusal would result in unjustifiably harsh consequences for the applicant or their family – will now fall to be considered, against the same test, under Appendix FM: that is, within the Immigration Rules. The decision maker must take into account, as a primary consideration, the best interests of any relevant child affected by the decision. This provision is made by paragraphs GEN.3.2. and GEN.3.3. of Appendix FM, inserted by HC 290.

 

Where an applicant is successful on this basis, entry clearance or limited leave to remain will be granted on the 10-year partner or parent route to settlement under Appendix FM, with scope for the applicant to apply in-country to switch to start the 5-year route if they subsequently meet the requirements for this.

 

These new provisions enable Entry Clearance Officers to conduct full Article 8 considerations under Appendix FM, removing the need to refer those entry clearance cases that potentially raise exceptional circumstances (requiring leave to be granted on Article 8 grounds) to the Referred Casework Unit.

 

In respect of entry clearance or leave to remain as a partner, child or parent under Appendix FM, in all cases that otherwise fall for refusal under the Immigration Rules, the decision maker must consider, under paragraph GEN.3.2. of Appendix FM, whether there are exceptional circumstances which would render refusal of the application a breach of ECHR Article 8 because it would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from the information provided by the applicant would be affected. Where the Rules are otherwise not met but there are such exceptional circumstances, entry clearance or leave to remain should be granted on a 10-year route to settlement. Guidance on considering exceptional circumstances can be found in section 13 of Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0a  Family Life (as a Partner or Parent): 5-Year Routes, August 2017, Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes

 

(11) What is a Partner?

 

Under paragraph GEN.1.2. of Appendix FM, a “partner” is defined as:

 

  • the applicant’s spouse (which must be evidenced by a marriage certificate);

  • the applicant’s civil partner (which must be evidenced by a civil partnership certificate);

  • the applicant’s fiancé(e) or proposed civil partner; or

  • a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application (which is expected to be evidenced by documents showing that the couple have been living together at the same address for at least two years).

The two-year period of living together for a couple who are not married or in a civil partnership must have been completed prior to the date of application. It does not have to have been completed immediately preceding the date of application if, for example, the couple are currently living apart for work reasons in order to meet the financial requirements of the Rules, provided that the relationship continues to be genuine and subsisting at the date of application.

 

(12) What is a Parent?

 

As well as including a natural parent, under paragraph 6 of the Immigration Rules, a “parent” is defined as:

 

  • the stepfather of a child whose father is dead (and the reference to stepfather includes a relationship arising through civil partnership);

  • the stepmother of a child whose mother is dead (and the reference to stepmother includes a relationship arising through civil partnership);

  • the father as well as the mother of an illegitimate child where he is proved to be the father;

  • an adoptive parent, where a child was adopted in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the UK, or where a child is the subject of a de facto adoption in accordance with the requirements of paragraph 309A of the Immigration Rules (except that an adopted child or a child who is the subject of a de facto adoption may not make an application for leave to enter or remain in order to accompany, join or remain with an adoptive parent under paragraphs 297 to 303); and

  • in the case of a child born in the UK who is not a British Citizen, a person to whom there has been a genuine transfer of parental responsibility on the grounds of the original parent(s)’ inability to care for the child.

 

(13) What does “present and settled in the UK” mean?

 

When considering paragraph E-ECP.2.1.(b) and paragraph E-LTRP.1.2.(b) of Appendix FM, the decision maker must be satisfied that the applicant’s partner is present and settled in the UK.

 

Under paragraph 6 of the Immigration Rules “present and settled” or “present and settled in the UK” means that the person concerned is settled in the UK and, at the time that an application under the Rules is made, is physically present here or is coming here with or to join the applicant and intends to make the UK their home with the applicant if the application is successful.

 

Where the person concerned is a British Citizen or settled in the UK and is:

 

(i) a member of HM Forces serving overseas, or

 

(ii) a permanent member of HM Diplomatic Service, or a comparable UK-based staff member of the British Council, Department for International Development or Home Office on a tour of duty outside the UK, and the applicant has provided the evidence specified in paragraph 26A of Appendix FM-SE,

 

then for the purposes of Appendix FM the person is to be regarded as present and settled in the UK, and in paragraphs R-LTRP.1.1.(a) and R-ILRP.1.1.(a) of Appendix FM the words “and their partner must be in the UK” are to be disregarded.

 

Generally, partners of a British Citizen or settled person who is a full-time member of HM Forces will apply under Part 8 under transitional arrangements or under Appendix Armed Forces rather than under Appendix FM.

 

(14)Parent route: When is the  relevant  child “Living in the UK” ?

 

When considering paragraphs E-LTRPT.2.2.(b) and (c), the decision maker must be satisfied that the applicant’s child is living in the UK and is either a British Citizen or settled in the UK.

 

“Living in the UK” means that the child concerned is living in the UK at the date of application and is physically present here and the applicant intends to make the UK their home with the child, if the application is successful. A parent cannot rely on their relationship with a child who is overseas to obtain leave in this route.

 

(15) What are Exceptional Circumstances?

 

Having regard to Immigration Directorate Instruction, Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes :

 

“Exceptional circumstances” means circumstances which could or would render refusal of entry clearance or limited leave to remain a breach of ECHR Article 8 (the right to respect for private and family life), because refusal could or would result in unjustifiably harsh consequences for the applicant, their partner or a relevant child, or would result in unjustifiably harsh consequences for another family member whose Article 8 rights it is evident from the application would be affected by a refusal.

 

“Exceptional” does not mean “unusual” or “unique”. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in the Immigration Rules have been missed by a small margin.

 

Instead, “exceptional” means circumstances in which refusal of the application could or would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under Article 8.

 

(16) What are unjustifiably harsh consequences?

 

Having regard to Immigration Directorate Instruction, Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes :

 

“Unjustifiably harsh consequences” are ones which involve a harsh outcome(s) for the applicant or their family which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others.

 

This involves consideration of whether refusal would be proportionate, taking into account all the facts of the case and, as a primary consideration, the best interests of any relevant child. The case-law makes clear that where the applicant does not meet the requirements of the Rules, and has established their family life in “precarious” circumstances (e.g. when they have limited leave to enter or remain in the UK), something “very compelling” is required to outweigh the public interest in refusal. Likewise, where family life is formed or exists with a person outside the UK who has no right to enter the UK and does not meet the requirements of the Rules for entry clearance, Article 8 does not require that they be granted entry, in the absence of such exceptional circumstances.

 

(17) What is a relevant child?

 

Having regard to Immigration Directorate Instruction, Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes :

 

A “relevant child” means a person who:

 

  • Is under the age of 18 years at the date of application; and

  • It is evident from the information provided by the applicant would be affected by a decision to refuse the application.

 

 

(18)What are the relevant application forms?

 

A person who wishes to come to live in the UK as the partner of a British Citizen or a person who is settled here, or who wishes to come to the UK on the parent route, must apply for entry clearance in that category. Overseas applicants must apply for entry clearance as a partner on forms VAF4A and VAF4A Appendix 2, or as a parent on forms VAF4A and VAF4A Appendix 5( on line forms would need to be submitted for substantive applications via https://www.visa4uk.fco.gov.uk/)

 

An applicant in the UK may apply for the 5-year partner route on form FLR(M), or the 5-year parent route on form FLR(FP). If they fail to meet certain of the eligibility requirements their application under the 5-year route will be refused, and consideration given to whether they qualify under the 10-year partner, parent or private life routes.

 

An applicant in the UK can also apply directly for the 10-year partner, parent or private life routes using form FLR(FP), e.g. where they know that they cannot meet certain of the eligibility requirements of the 5-year partner or parent route.

 

The application form for indefinite leave to remain in the UK as the partner of a person or parent of a child present and settled in the UK is form SET(M).

 

(19) 5year route, Partner applications: What are the entry clearance and leave to remain requirements?

 

Under the 5-year partner route, an applicant must meet all of the relevant suitability and eligibility requirements at every application stage.

 

Partner applications:

 

For entry clearance requirements,  5year route, paragraph EC-P.1.1. of Appendix FM requires that:

 

(a) the applicant must be outside the UK;

(b) the applicant must have made a valid application for entry clearance as a partner;

(c) the applicant must not fall for refusal under any of the grounds in Section S-EC: Suitability–entry clearance; and

(d) the applicant must meet all of the requirements of Section E-ECP: Eligibility for entry clearance as a partner. These are:

 

 E-ECP.2.1. to E-ECP.2.10.: Relationship requirements;

 E-ECP.3.1. to E-ECP.3.4.: Financial requirements; and

 E-ECP.4.1. to E-ECP.4.2.: English language requirement.

 

For leave to remain applications, 5year route, paragraph R-LTRP.1.1. of Appendix FM provides that:

 

(a) the applicant and their partner must be in the UK;

(b) the applicant must have made a valid application for limited or indefinite leave to remain as a partner; and

(c) (i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and

 

(ii) the applicant meets all of the requirements of Section E-LTRP: Eligibility for leave to remain as a partner. These are:

 

 E-LTRP.1.2. to E-LTRP.1.12.: Relationship requirements;

 E-LTRP.2.1. to E-LTRP.2.2.: Immigration status requirements;

 E-LTRP.3.1. to E-LTRP.3.4.: Financial requirements; and

 E-LTRP.4.1. to E-LTRP.4.2.: English language requirement.

 

For indefinite leave to remain applications, 5year route, Section R-ILRP.1.1.  requires  that:

 

(a) the applicant and their partner must be in the UK;

(b) the applicant must have made a valid application for indefinite leave to remain as a partner;

(c) the applicant must not fall for refusal under any of the grounds in Section

S-ILR: Suitability for indefinite leave to remain;

(d) the applicant:

(i) must meet all of the requirements of Section E-LTRP: Eligibility for leave to remain as a partner (but in applying paragraph E-LTRP.3.1.(b)(ii) delete the words “2.5 times”); or

(ii) must meet the requirements of paragraphs E-LTRP.1.2.-1.12. and E-LTRP.2.1. and paragraph EX.1. applies; and

(e) the applicant must meet all of the requirements of Section E-ILRP: Eligibility for indefinite leave to remain as a partner.

 

(20) 5year route, Parent applications: What are the entry clearance and leave to remain requirements?

 

Family Life as the Parent of a Child in the UK:

 

The Immigration Rules provide the basis on which a person can apply to enter or remain in the UK on the basis of their family life as a parent of a child in the UK. It is a route intended for a parent who has sole responsibility for or direct access to the child following the breakdown of their relationship with the child’s other parent. The route is for applicants who:

 

  • have sole parental responsibility for their child; or

  • do not live with the child (who lives with a parent or carer who is a British Citizen or settled here), but they have direct access (in person) to the child, as agreed with the parent or carer with whom the child normally lives or as ordered by a court in the UK; or

  • (only in a leave to remain application) are the parent with whom the child normally lives, rather than the child’s other parent who is British or settled.

 

The parent route is not for couples with a child who are in a continuing genuine and subsisting partner relationship together. Applicants in this position must apply under the partner route where, or when, they are eligible to do so, or under the private life route. An applicant cannot apply under the parent route if they are or will be eligible to apply under the partner route, including where the applicant is in a partner relationship but the couple have not yet been living together for two years.

 

Under the 5year route the requirements to be met by an applicant for entry clearance as a parent under paragraph EC-PT.1.1. of Appendix FM are that:

 

(a) the applicant must be outside the UK;

(b) the applicant must have made a valid application for entry clearance as a parent;

(c) the applicant must not fall for refusal under any of the grounds in Section S-EC: Suitability–entry clearance; and

(d) the applicant must meet all of the requirements of Section E-ECPT: Eligibility for entry clearance as a parent. These are:

 

 E-ECPT.2.1. to E.ECPT.2.4.: Relationship requirements;

 E-ECPT.3.1. to E.ECPT.3.2.: Financial requirements; and

 E-ECPT.4.1. to E.ECPT.4.2.: English language requirement.

 

Under the 5-year route, the requirements to be met by an applicant for leave to remain as a parent under paragraph R-LTRPT.1.1. of Appendix FM are that:

 

(a) the applicant and the child must be in the UK;

(b) the applicant must have made a valid application for limited or indefinite leave to remain as a parent; and

(c) (i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and

(ii) the applicant meets all of the requirements of Section E-LTRPT: Eligibility for leave to remain as a parent. These are:

 

 E-LTRPT.2.2. to E-LTRPT.2.4.: Relationship requirements;

 E-LTRPT.3.1. to E-LTRPT.3.2.: Immigration status requirements;

 E-LTRPT.4.1. to E-LTRPT.4.2.: Financial requirements; and

 E-LTRPT.5.1. to E-LTRPT.5.2.: English language requirement.

 

The requirements to be met for indefinite leave to remain as a parent set out in Section R-ILRPT.1.1. are that:

 

(a) the applicant must be in the UK;

(b) the applicant must have made a valid application for indefinite leave to remain as a parent;

(c) the applicant must not fall for refusal under any of the grounds in Section S-ILR: Suitability – indefinite leave to remain;

(d) the applicant must meet all of the requirements of Section E-LTRPT: Eligibility for leave to remain as a parent; and

(e) the applicant must meet all of the requirements of Section E-ILRPT: Eligibility for indefinite leave to remain as a parent.

 

Clarifications- parent route:

 

For entry clearance applications where the applicant is outside the UK, when considering paragraphs E-ECPT.2.3. and E-ECPT.2.4., the decision maker must be satisfied that the applicant has:

 

  • sole parental responsibility for the child; or

  • direct access (in person) to the child, as agreed with the parent or carer with whom the child normally lives or as ordered by a court in the UK. In addition in such cases:

    • the parent or carer with whom the child normally lives must be a British Citizen in the UK or settled in the UK and not the partner of the applicant; and

    • the applicant must not be eligible to apply for entry clearance as a partner under Appendix FM; and

 

  • in all cases, the applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child’s upbringing.

For leave to remain applications where the applicant is in the UK, when considering paragraphs E-LTRPT.2.3. and E-LTRPT.2.4. the decision maker must be satisfied that:

 

  • the applicant has sole parental responsibility for the child; or

  • the child normally lives with the applicant and not their other parent (who is a British Citizen or settled in the UK), and the applicant must not be eligible to apply for leave to remain as a partner under Appendix FM; or

  • the applicant has direct access (in person) to the child, as agreed with the parent or carer with whom the child normally lives or as ordered by a court in the UK. In addition in such cases:

    • the parent or carer with whom the child normally lives must be a British Citizen in the UK or settled in the UK and not the partner of the applicant (which here includes a person who has been in a relationship with the applicant for less than two years at the date of application); and

    • the applicant must not be eligible to apply for leave to remain as a partner under Appendix FM; and

 

  • in all cases, the applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child’s upbringing.

 

For both entry clearance and leave to remain applications as a parent, if the child normally lives with their other British Citizen or settled parent or carer, that person cannot be the partner of the applicant (which for leave to remain includes a person who has been in a relationship with the applicant for less than two years prior to the date of application) and the applicant must not be eligible to apply for entry clearance or leave to remain as a partner under Appendix FM.

 

The parent route under Appendix FM is not for couples with a child who are in a continuing genuine and subsisting relationship together. Applicants in this position must apply under the partner route where, or when, they are eligible to do so, or under the private life route. An applicant cannot apply under the parent route if they are or will be eligible to apply under the partner route, including where the applicant is in a partner relationship but the couple have not yet been living together for two years.

 

The following are interpreted in line with Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0a  Family Life (as a Partner or Parent): 5-Year Routes, August 2017, Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes :

 

  • Sole parental responsibility

  • Normally lives with

  • Child does not normally live with the applicant

  • Direct access in person

 

(21) How would you know what specified evidence must be submitted with the application?

 

Appendix FM must be read together with Appendix FM-SE, which sets out the specified evidence which must be submitted with an application, and Appendix O, which sets out the English language tests approved for an application for entry clearance or leave to remain as a partner or parent. An applicant must provide all of the documents specified in Appendix FM-SE which are relevant to their application under Appendix FM.

 

 

(22) How is a Partner relationship assessed as genuine and subsisting?

 

When considering paragraph E-ECP.2.6. and paragraph E-LTRP.1.7., the decision maker must be satisfied that the relationship between the applicant and their partner is genuine and subsisting.

 

An applicant applying as an unmarried partner or same sex partner must have been living together with their partner in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application and must provide documentary evidence of this.

 

The relevant guidance on assessing whether a relationship is genuine and subsisting is Annex FM 2.0: genuine and subsisting relationship

 

(23) How is the validity of a marriage or civil partnership assessed?

 

When assessing whether an applicant claiming to be married or in a civil partnership meets the requirements of paragraph E-ECP.2.7. and paragraph E-LTRP.1.8, the decision maker must be satisfied that the applicant and partner have a valid marriage or civil partnership.

 

The applicant and partner must provide evidence that their marriage or civil partnership is valid in the UK. The required evidence of marriage or civil partnership is specified in paragraphs 22 to 26 of Appendix FM-SE.

 

Where the applicant and partner have been married in the UK, the marriage must be evidenced by a certificate recognised under the laws of England and Wales, Scotland or Northern Ireland.

 

Where the applicant and partner have entered into a civil partnership in the UK, the civil partnership must be evidenced by a civil partnership certificate.

 

In assessing whether a couple have a valid marriage or civil partnership, the decision maker should refer to the following guidance:

 

 

(24) When is a previous relationship accepted to have broken down permanently?

 

When considering paragraph E-ECP.2.9.(i) and paragraph E-LTRP.1.9., the decision maker must be satisfied that any previous relationship of the applicant or their partner has broken down permanently, unless it is a marriage or civil partnership which falls within paragraph 278(i) of the Rules.

 

When considering paragraph E-ECP.2.9.(ii), the decision maker must be satisfied that neither the applicant nor their partner is married to, or in a civil partnership with, another person at the date of an application for entry clearance as a fiancé(e) or proposed civil partner under Appendix FM.

 

Where the applicant and/or their partner has previously been married or in a civil partnership, the applicant must provide evidence as specified in paragraphs 23 and 25 to 26 of Appendix FM-SE that the previous marriage or civil partnership has ended.

 

Where the marriage or civil partnership of the applicant or their sponsor to a previous partner has not been legally dissolved, the applicant may still be able to qualify under Appendix FM as an unmarried partner or same sex partner, provided that they meet the criteria set out in paragraph GEN.1.2. and they provide evidence that the new relationship is genuine and subsisting and that the previous relationship has broken down permanently.

 

In assessing whether any previous relationship of the applicant or their partner has broken down permanently, the decision maker should refer to the following guidance:

 

Annex FM 2.1: eligibility, registration, dissolution and glossary of terms

 

(25) 5 year route, Partner – How is the financial requirement met?

 

Partner:

 

To qualify for entry clearance or leave to remain as a partner on the 5-year route to settlement the applicant must meet the financial requirement in Appendix FM – Family Life as a Partner. The relevant paragraphs are:

 

  • Entry clearance: E-ECP.3.1. to E-ECP.3.3.

  • Leave to remain and indefinite leave to remain: E-LTRP.3.1. to E-LTRP.3.3.

 

This includes providing the required evidence specified in Appendix FM-SE. For guidance on the financial requirement, see Appendix FM 1.7: financial requirement

Applicants who are exempt from the minimum income threshold under the financial requirement in Appendix FM (because their partner is in receipt of a specified benefit or allowance) must instead demonstrate that their partner is able to maintain themselves, the applicant and any dependants “adequately” without recourse to public funds.

 

Specified evidence must be provided as set out in Appendix FM-SE. Appendix FM 1.7a: maintenance

 

 

(26) When is the accommodation requirement accepted to have been met?

 

To qualify for entry clearance or leave to remain as a partner on the 5-year route to settlement the applicant must meet the accommodation requirement in Appendix FM – Family Life as a Partner. The relevant paragraphs are:

 

  • Entry clearance: E-ECP.3.4.

  • Leave to remain and indefinite leave to remain: E-LTRP.3.4.

The applicant must provide evidence that there will be adequate accommodation, without recourse to public funds, for the family (including other family members who are not included in the application but who live in the same household), which the family own or occupy exclusively.

 

Accommodation will not be regarded as adequate if:

 

(a) it is, or will be, overcrowded; or

(b) it contravenes public health regulations.

For further guidance on the accommodation requirement, see Appendix FM 1.7a: maintenance

 

(27) How is the English language requirement met?

 

To qualify for entry clearance or leave to remain as a partner on the 5-year route to settlement the applicant must meet the English language requirement in Appendix FM – Family Life as a Partner. The relevant paragraphs are:

 

  • Entry clearance: E-ECP.4.1. to E-ECP.4.2.

  • Leave to remain: E-LTRP.4.1. and E-LTRP.4.2.

 

Under paragraphs E-ECP.4.1. to 4.2 and paragraphs E-LTRP.4.1. to 4.2. the applicant must provide evidence as specified in paragraphs 27 to 32D of Appendix FM-SE that the English language requirement is met.

 

The applicant can meet the English language requirement in one of the following ways:

 

  • by being a national of a majority English speaking country listed in paragraph GEN.1.6.;

  • by passing an English language test in speaking and listening at a minimum of level A1 of the Common European Framework of Reference for Languages (CEFR) with a provider approved by the Home Office;

  • by having an academic qualification which is either a Bachelor’s or Master’s degree or PhD if awarded in the UK; or, if awarded outside the UK, is deemed by UK NARIC to meet or exceed the recognised standard of a Bachelor’s or Master’s degree or PhD in the UK, and UK NARIC has confirmed that the degree was taught or researched in English to level A1 of the CEFR or above; or

  • by qualifying for an exemption.

 

From 1 May 2017, under paragraph E-LTRP.4.2A. a person applying to extend their stay after two and a half years in the UK as a partner on the 5-year route to settlement, who met the English language requirement in their previous application by passing an approved test at level A1, must provide evidence as specified in paragraphs 27 to 32D of Appendix FM-SE that they meet the requirement:

 

  • by being a national of a majority English speaking country listed in paragraph GEN.1.6.;

  • by passing an English language test in speaking and listening at a minimum of level A2 of the CEFR with a provider approved by the Home Office;

  • by having an academic qualification which is either a Bachelor’s or Master’s degree or PhD if awarded in the UK; or, if awarded outside the UK, is deemed by UK NARIC to meet or exceed the recognised standard of a Bachelor’s or Master’s degree or PhD in the UK, and UK NARIC has confirmed that the degree was taught or researched in English to level A2 of the CEFR or above; or

  • by qualifying for an exemption.

 

For further guidance on the English language requirement, including exemptions, see Appendix FM section 1.21: English language requirement

An applicant for leave to remain who was exempt from the English language requirement at the entry clearance stage needs to meet the requirement at paragraphs E-LTRP.4.1. to .4.2. when they apply for further leave to remain in the UK on the 5-year route to settlement, unless they again qualify for an exemption, on the same or a different basis.

 

To qualify for indefinite leave to remain as a partner on the 5-year route to settlement the applicant must have sufficient knowledge of language and life (KoLL) in the UK in accordance with Appendix Koll.

 

The relevant paragraph is:

 

  • Indefinite leave to remain: E-ILRP.1.6.

 

Under paragraph D-ILRP.1.2, if the applicant cannot meet the requirements in accordance with Appendix KoLL, they can only be granted limited leave to remain, provided they meet all the other requirements. For further guidance on the KoLL requirement, including exemptions, see: Knowledge of language and life in the UK

From 28 October 2013 all applicants for settlement are required to present a speaking and listening qualification at CEFR level B1 or above and pass the Life in the UK test.

 

(28) What type of leave is granted to a Partner?

 

Entry Clearance, Fiancé or proposed civil Partner:

 

Under paragraph D-ECP.1.1. or D-ECP.1.2., if the applicant meets the requirements for entry clearance as a partner where they are a fiancé(e) or proposed civil partner, they should be granted entry clearance for a period not exceeding 6 months and subject to a condition of no recourse to public funds and to a prohibition on employment in the UK.

 

The applicant will be eligible to apply for leave to remain in the UK as a partner once the marriage or civil partnership has taken place.

 

A spouse or civil partner can re-enter the UK following a honeymoon abroad during the remaining validity of their entry clearance as a fiancé(e) or proposed civil partner if they can satisfy the Immigration Officer, in the light of the change in their marital or civil partnership status (which they should evidence with a copy of the marriage or civil partnership certificate), of their intention, within the remaining validity of that entry clearance, to regularise their status in the UK as a spouse or civil partner.

 

Following the marriage or civil partnership and subject to a subsequent successful application for leave to remain (and in due course for further leave to remain) as a partner on the 5-year or 10-year route, they may be able to qualify for indefinite leave to remain (settlement) after completing 60 months (5 years) or 120 months (10 years) in the UK with limited leave as a partner. The 5-year or 10-year period will exclude any period(s) of entry clearance or limited leave as a fiancé(e) or proposed civil partner.

 

Where a fiancé(e) or proposed civil partner is being granted on the basis of paragraph D-ECP.1.1., any dependent child who is applying at the same time should be considered under paragraph EC-C.1.1. and if they meet those requirements, should be granted entry clearance under paragraph D-ECC.1.1. for a period and subject to conditions in line with those of their parent who is, or has been, granted entry clearance as a fiancé(e) or proposed civil partner under the partner Rules of Appendix FM.

 

Where a fiancé(e) or proposed civil partner is being granted on the basis of paragraph D-ECP.1.2., any dependent child who is applying at the same time should be considered under paragraph EC-C.1.1. and if they meet those requirements (except that, where the applicant’s parent is granted entry clearance following consideration under paragraph GEN.3.2., the applicant does not have to meet the requirements in paragraphs E-ECC.2.1. to E-ECC.2.4.), should be granted entry clearance under paragraph D-ECC.1.1. for a period and subject to conditions in line with those of their parent who is, or has been, granted entry clearance as a fiancé(e) or proposed civil partner under the partner Rules of Appendix FM.

 

Granting an extension of leave to remain as a fiancé or proposed civil partner :

 

Under paragraph D-LTRP.1.1. or D-LTRP.1.2., if paragraph E-LTRP.1.11. applies (extension as a fiancé(e) or proposed civil partner), an applicant will be granted leave to remain for a period not exceeding 6 months, subject to a condition of no recourse to public funds and to a prohibition on employment. Any extant leave as a fiancé(e) or proposed civil partner will not be added to any period of further leave as a fiancé(e) or proposed civil partner granted under paragraph D-LTRP.1.1. or D-LTRP.1.2. or when they seek to switch from fiancé(e) or proposed civil partner following their marriage or civil partnership.

 

The applicant will be eligible to apply for leave to remain as a partner once the marriage or civil partnership has taken place.

 

Following the marriage or civil partnership and a subsequent successful application for leave to remain (and in due course for further leave to remain) as a partner on the 5-year or 10-year partner route, they may be eligible to apply for settlement after completing 60 months (5 years) or 120 months (10 years) in the UK with leave to remain as a partner. The 5-year or 10-year period will exclude any period(s) of entry clearance or limited leave as a fiancé(e) or proposed civil partner.

 

Where paragraph E-LTRP.1.11. applies and an extension as a fiancé(e) is being granted to an applicant on the basis of paragraph D-LTRP.1.1. or D-LTRP.1.2., any dependent child included in the application who requires leave should be considered under paragraph R-LTRC.1.1. If the child meets the requirements of those Rules, they should be granted leave to remain under paragraph D-LTRC.1.1. of the same duration and subject to the same conditions in respect of recourse to public funds as their parent who is, or has been, granted leave under the partner Rules of Appendix FM.

 

Entry Clearance Partner – 5year route:

 

Under paragraph D-ECP.1.1., if the applicant meets the requirements for entry clearance as a partner (not a fiancé(e) or proposed civil partner) under the 5-year route, they should be granted entry clearance for an initial period of no more than 33 months and subject to a condition of no recourse to public funds.

 

The applicant will need to make an application for further leave to remain once they have completed a period of 30 months in the UK. They should make that application 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. They may be able to qualify for indefinite leave to remain (settlement) after completing 60 months (5 years) in the UK with limited leave as a partner under the 5-year route under Appendix FM.

 

Where a partner is being granted on the basis of paragraph D-ECP.1.1., any dependent child who is applying at the same time should be considered under paragraph EC-C.1.1. and if they meet those requirements, should be granted entry clearance under paragraph D-ECC.1.1. for a period and subject to conditions in line with those of their parent who is, or has been, granted entry clearance under the partner Rules of Appendix FM.

 

Entry Clearance Partner – 10year route:

 

Under paragraph D-ECP.1.2., if the applicant meets the requirements for entry clearance as a partner (not a fiancé(e) or proposed civil partner) under the 10-year route, they should be granted entry clearance for an initial period of no more than 33 months and generally subject to a condition of no recourse to public funds.

 

The applicant will need to make an application for further leave to remain once they have completed a period of 30 months in the UK. They should make that application 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. They may be able to qualify for indefinite leave to remain (settlement) after completing 120 months (10 years) in the UK with limited leave as a partner under Appendix FM.

 

Where a partner is being granted on the basis of paragraph D-ECP.1.2., any dependent child who is applying at the same time should be considered under paragraph EC-C.1.1. and if they meet those requirements (except that, where the applicant’s parent is granted entry clearance following consideration under paragraph GEN.3.2., the applicant does not have to meet the requirements in paragraphs E-ECC.2.1. to E-ECC.2.4.), should be granted entry clearance under paragraph D-ECC.1.1. for a period and subject to conditions in line with those of their parent who is, or has been, granted entry clearance under the partner Rules of Appendix FM.

 

Leave to Remain Partner – 5year route:

 

Where an applicant is applying to join, or to extend their leave under, the 5-year partner route to settlement in the UK and they meet the requirements of R-LTRP.1.1.(a) to (c), the applicant will be granted leave to remain as a partner under D-LTRP.1.1. for 30 months on the 5-year route to settlement, subject to a condition of no recourse to public funds.

 

Where an applicant has extant leave as a partner under the 5-year route at the date of application, any period of extant leave, up to a maximum of 28 days, will be added to the period of leave that they are being granted under paragraph D-LTRP.1.1. An applicant with extant leave in this scenario will therefore be granted a period of leave slightly in excess of 30 months.

 

If an applicant granted leave to remain as a partner is receiving their first grant of limited leave on the 5-year route (rather than their second grant following an earlier grant of entry clearance or leave to remain as a partner under that route), the applicant will in due course need to make an application for further leave to remain as a partner of 30 months. They should make that application 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. They may be eligible to apply for settlement after completing 60 months (5 years) in the UK with leave to remain as a partner under the 5-year route under Appendix FM.

 

Where a partner is being granted on the basis of paragraph D-LTRP.1.1., any dependent child included in the application who requires leave should be considered under paragraph R-LTRC.1.1. If the child meets the requirements of those Rules, they should be granted leave to remain under paragraph D-LTRC.1.1. of the same duration and subject to the same conditions in respect of recourse to public funds as their parent who is, or has been, granted leave under the partner Rules of Appendix FM.

 

Granting indefinite leave to remain as a partner:

 

Where an applicant meets the requirements of R-ILRP.1.1., they will be granted indefinite leave to remain under D-ILRP.1.1.

 

If an applicant fails to meet all of the requirements for indefinite leave to remain because:

 

(i) paragraph S-ILR.1.5. or S-ILR.1.6. applies; and/or

 

(ii) the applicant has not demonstrated sufficient knowledge of the language and life in the UK requirement in accordance with Appendix Koll,

 

under paragraph D-ILRP.1.2. the applicant will be granted further limited leave to remain as a partner for a period not exceeding 30 months, subject to a condition of no recourse to public funds, provided that any requirement to pay the Immigration Health Surcharge under the Immigration (Health Charge) Order 2014 is met.

 

Under paragraph D-ILRP.1.3., if the applicant meets the requirements for leave to remain as a partner under the 10-year route, they will be granted leave to remain for a period not exceeding 30 months as a partner under paragraph D-LTRP.1.2. of Appendix FM. Under paragraph GEN.1.11A, this grant of limited leave will normally be subject to a condition of no recourse to public funds, unless the applicant has provided the decision maker with satisfactory evidence that they are destitute, or satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income.

 

Where an applicant has extant leave as a partner under Appendix FM at the date of application, any period of extant leave, up to a maximum of 28 days, will be added to the period of leave that they are being granted under paragraph D-LTRP.1.2. or D-ILRP.1.2. An applicant with extant leave in this scenario will therefore be granted a period of leave slightly in excess of 30 months.

 

If the applicant has already completed 60 or 120 months in the UK with limited leave as a partner, they should be informed that, should the reason they do not meet the requirements for indefinite leave to remain be overcome, they will be eligible to make a further charged application for indefinite leave to remain at any time within the 30 month period of leave granted under paragraph D-LTRP.1.2. or D-ILRP.1.2. They do not need to wait until their leave expires if they become able to meet all the requirements. If not, they should make their next application no more than 28 days before their leave is due to expire, or within 28 days of completing the period of leave in the UK required for them to be eligible to apply for indefinite leave to remain.

 

Where a partner is being granted leave to remain on the basis of paragraph D-LTRP.1.2. or D-ILRP.1.2., any dependent child included in the application who requires leave should be considered under paragraph R-LTRC.1.1. If the child meets those requirements, they should be granted leave to remain under paragraph D-LTRC.1.1. of the same duration and subject to the same conditions in respect of recourse to public funds as their parent who is, or has been, granted leave under the partner Rules of Appendix FM.

 

(29) What type of leave is granted to a Parent?

 

Entry clearance as a parent – 5year route

 

Under paragraph D-ECPT.1.1., if the applicant meets the requirements for entry clearance as a parent under the 5-year route, they should be granted entry clearance for an initial period of no more than 33 months and subject to a condition of no recourse to public funds.

 

The applicant will need to make an application for leave to remain once they have completed a period of 30 months in the UK. They should make that application 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 leave as a parent. They may be able to qualify for indefinite leave to remain (settlement) after completing 60 months (5 years) in the UK with limited leave as a parent under the 5-year route under Appendix FM.

 

Where a parent is being granted on the basis of paragraph D-ECPT.1.1., any dependent child who is applying at the same time should be considered under paragraph EC-C and if they meet the requirements of those Rules, should be granted entry clearance under paragraph D-ECC.1.1. for a period and subject to conditions in line with those of their parent who is, or has been, granted entry clearance under the parent Rules of Appendix FM.

 

Entry clearance as a parent – 10year route:

 

Under paragraph D-ECPT.1.2., if the applicant meets the requirements for entry clearance as a parent under the 10-year route, they should be granted entry clearance for an initial period of no more than 33 months and generally subject to a condition of no recourse to public funds.

 

The applicant will need to make an application for leave to remain once they have completed a period of 30 months in the UK. They should make that application 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 leave as a parent. They may be able to qualify for indefinite leave to remain (settlement) after completing 120 months (10 years) in the UK with limited leave as a parent under Appendix FM.

 

Where a parent is being granted on the basis of paragraph D-ECPT.1.2., any dependent child who is applying at the same time should be considered under paragraph EC-C.1.1. and if they meet those requirements (except that, where the applicant’s parent is granted entry clearance following consideration under paragraph GEN.3.2., the applicant does not have to meet the requirements in paragraphs E-ECC.2.1. to E-ECC.2.4.), should be granted entry clearance under paragraph D-ECC.1.1. for a period and subject to conditions in line with those of their parent who is, or has been, granted entry clearance under the parent Rules of Appendix FM.

 

Leave to remain as a parent under the 5-year route:

 

Where an applicant is applying to join, or to extend their leave under, the 5-year parent route to settlement in the UK and they meet the requirements of R-LTRPT.1.1.(a) to (c), the applicant will be granted leave to remain as a parent under D-LTRPT.1.1. for 30 months on a 5-year route to settlement, subject to a condition of no recourse to public funds.

 

Where an applicant has extant leave under the 5-year parent route at the date of application, any period of extant leave, up to a maximum of 28 days, will be added to the period of leave that they are being granted under paragraph D-LTRPT.1.1. An applicant with extant leave in this scenario will therefore be granted a period of leave slightly in excess of 30 months.

 

If an applicant granted leave to remain as a parent is receiving their first grant of limited leave on the 5-year route (rather than their second grant following an earlier grant of entry clearance or leave to remain as a parent under Appendix FM), the applicant will in due course need to make an application for further leave to remain as a parent of 30 months. They should make that application 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 leave as a parent. They may be eligible to apply for settlement after completing 60 months (5 years) in the UK with limited leave as a parent under the 5-year route under Appendix FM.

 

Where a parent is being granted on the basis of paragraph D-LTRPT.1.1., any dependent child included in the application who requires leave should be considered under paragraph R-LTRC.1.1. If the child meets the requirements of those Rules, they should be granted leave to remain under paragraph D-LTRC.1.1. of the same duration and subject to the same conditions in respect of recourse to public funds as their parent who is, or has been, granted leave under the parent Rules of Appendix FM.

 

Indefinite leave to remain as a parent

 

Where an applicant meets the requirements of R-ILRPT.1.1. (a) to (e) they will be granted indefinite leave to remain under D-ILRPT.1.1.

 

If an applicant fails to meet all of the requirements because:

 

(i) paragraph S-ILR.1.5. or S-ILR.1.6 applies; and/or

(ii) the applicant has not demonstrated sufficient knowledge of the language and life in the UK requirement in accordance with Appendix Koll,

 

under paragraph D-ILRPT.1.2. the applicant will be granted further limited leave to remain as a parent for a period not exceeding 30 months, subject to a condition of no recourse to public funds, provided that any requirement to pay the Immigration Health Surcharge under the Immigration (Health Charge) Order 2014 is met.

 

Under paragraph D-ILRPT.1.3., if the applicant meets the requirements for leave to remain as a parent under the 10-year route, they will be granted leave to remain for a period not exceeding 30 months as a parent under paragraph D-LTRPT.1.2. of Appendix FM. Under paragraph GEN.1.11A, this grant of leave will normally be subject to a condition of no recourse to public funds, unless the applicant has provided the decision maker with satisfactory evidence that they are destitute, or satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income. For further guidance on the policy on recourse to public funds, see section 12 of this guidance.

 

Where an applicant has extant leave as a parent under Appendix FM at the date of application, any period of extant leave, up to a maximum of 28 days, will be added to the period of leave that they are being granted under paragraph D-LTRPT.1.2. or D-ILRPT.1.2. An applicant with extant leave in this scenario will therefore be granted a period of leave slightly in excess of 30 months.

 

If the applicant has already completed 60 or 120 months in the UK with limited leave as a parent, they should be informed that, should the reason they do not meet the requirements for indefinite leave to remain be overcome, they will be eligible to make a further charged application for indefinite leave to remain at any time within the 30 month period of leave granted under paragraph D-LTRPT.1.2. or D-ILRPT.1.2.: they do not need to wait until their leave expires if they become able to meet all the requirements. If not, they should make their next application no more than 28 days before their extant leave is due to expire, or within 28 days of completing the period of leave required for them to be eligible to apply for indefinite leave to remain.

 

Where a parent is being granted on the basis of paragraph D-LTRPT.1.2. or D-ILRPT.1.2., any dependent child included in the application who requires leave should be considered under paragraph R-LTRC.1.1. If the child meets the requirements of those Rules, they should be granted leave to remain under paragraph D-LTRC.1.1. of the same duration and subject to the same conditions in respect of recourse to public funds as their parent who is, or has been, granted leave under the parent Rules of Appendix FM.

 

(30) Is recourse to public funds permitted?

 

Under Appendix FM, entry clearance or leave to remain:

 

  • Under the 5-year partner and parent routes;

  • As a bereaved partner;

  • As a fiancé(e) or proposed civil partner, will be granted subject to a condition of no recourse to public funds.

Under Appendix FM, entry clearance or leave to remain under the 10-year partner and parent routes will be granted subject to a condition of no recourse to public funds, unless the decision maker determines, in line with paragraph GEN.1.11A of Appendix FM that this condition should not be applied.

 

(31) What Suitability requirements are applicable?

 

In considering all applications for entry clearance or leave to remain as a partner or parent the decision maker must consider whether the suitability requirements in Appendix FM are met. These are set out in the Family Life as a Partner section of Appendix FM but also apply to Family Life as a Parent.

 

Partner or Parent- entry clearance:

 

In all applications for entry clearance as a partner or parent the decision maker must consider whether the suitability requirements in paragraphs S-EC.1.1. to S-EC.3.2. of Appendix FM are met.

 

  • Under paragraph S-EC.1.1. the applicant will be refused entry clearance on the grounds of suitability if any of paragraphs S-EC.1.2. to S-EC.1.9. apply.

  • Under paragraph S-EC.2.1. the applicant will normally be refused entry clearance on grounds of suitability if any of paragraphs S-EC.2.2. to S-EC.2.5. apply.

  • Under paragraph S-EC.3.1. the applicant may be refused entry clearance on the grounds of suitability if the applicant has failed to pay litigation costs awarded to the Home Office.

  • Under paragraph S-EC.3.2. the applicant may be refused entry clearance on the grounds of suitability if one or more relevant NHS bodies has notified the Secretary of State that the applicant has failed to pay charges in accordance with the relevant NHS regulations on charges to overseas visitors and the outstanding charges have a total value of at least £500.

Paragraph S-EC.1.9. applies to entry clearance applications only. The purpose of paragraph S-EC.1.9. of Appendix FM is to enable Entry Clearance Officers to make decisions consistent with the need to safeguard children where entry clearance applications involving children raise child welfare or child protection issues.

 

In considering the suitability criteria under paragraphs S-EC.1.2. to S-EC.1.5. of Appendix FM, decision makers must refer to the Criminality Guidance.

 

In considering the suitability criteria under paragraphs S-EC.1.6. to S-EC.1.8., S-EC.2.2. to .S-EC.2.5. and S-EC.3.1. to S-EC.3.2. of Appendix FM, decision makers must refer to the General Grounds for Refusal Guidance.

 

Under paragraph S-EC.1.8. an application made on or after 6 April 2013 must be refused where the applicant left or was removed from the UK as a condition of a caution issued in accordance with section 22 of the Criminal Justice Act 2003 less than 5 years prior to the date on which the application is decided.

 

Partner or Parent- leave to remain applications:

 

In considering all applications for leave to remain as a partner or parent the decision maker must consider whether the suitability requirements in paragraphs S-LTR.1.1. to .4.5. of Appendix FM are met.

 

  • Under paragraph S-LTR.1.1. an applicant will be refused leave to remain on the grounds of suitability if any of paragraphs S-LTR.1.2. to S-LTR.1.8. apply.

  • Under paragraph S-LTR.2.1. an applicant will normally be refused leave to remain on grounds of suitability if any of paragraphs S-LTR.2.2. to S-LTR.2.5. apply.

  • Under paragraph S-LTR.3.1., when considering whether the presence of an applicant in the UK is not conducive to the public good, any legal or practical reasons why the applicant cannot presently be removed from the UK must be ignored.

  • Under paragraph S-LTR.4.1. an applicant may be refused leave to remain on the grounds of suitability if any of the paragraphs S-LTR.4.2. to S-LTR.4.5. apply

In considering the suitability criteria under paragraphs S-LTR.1.2. to S-LTR.1.6. of Appendix FM, decision makers must refer to the Criminality Guidance.

 

In considering the suitability criteria under paragraphs S-LTR.1.7.,S-LTR.2.2., S-LTR.2.4., S-LTR.3.1. and S-LTR.4.2. to S-LTR.4.5. of Appendix FM, decision makers must refer to the General Grounds for Refusal Guidance.

 

In considering the suitability criteria under paragraph S-LTR.1.8. of Appendix FM, decision makers must refer to the Restricted Leave guidance.

 

Under paragraphs S-LTR.2.2. to S-LTR.2.5., where an applicant will normally be refused if they fail to meet these suitability requirements, and under paragraphs S-LTR.4.2. to S-LTR. 4.5. where an applicant may be refused if they fail to meet these suitability requirements, the decision maker should look at the nature of the suitability issues under consideration in the context of the application as a whole and decide whether those issues are sufficiently serious to refuse on the basis of suitability (bearing in mind that anything which comes within these criteria should normally or may be refused) or whether there are compelling reasons to decide that the applicant meets the suitability criteria. This will be a case-specific consideration.

 

Where an application for further leave on the 5-year partner or parent route is received from a foreign criminal:

 

  • who has previously been considered for deportation; and

  • where deportation was not effected (because Criminal Casework Directorate decided that it would breach Article 8 or an appeal against the deportation was allowed); and

  • who was granted leave to remain on the basis of Article 8;

 

the application should not be considered under Appendix FM, but under Part 13 of the Immigration Rules. This is because deportation remains conducive to the public good and in the public interest. The relevant Immigration Rules are set out in paragraph A362 and paragraphs A398 to 399D of Part 13. Such cases should be referred to Criminal Casework Directorate.

 

The decision maker must consider whether criminality which does not fall within paragraphs S-LTR.1.2. to S-LTR.1.4. may fall for refusal under paragraphs S-LTR.1.5. to S-LTR.1.6.In doing so, the decision maker should look at whether the applicant’s conduct (including any convictions which do not fall within paragraphs S-LTR.1.3. to S-LTR.1.4.) means that their presence in the UK is undesirable or not conducive to the public good under conduct, character, associations or other reasons. It is possible for an applicant to meet the suitability requirements, even where there is some criminality. If the applicant falls for refusal on the basis of suitability under S-LTR, the application will be refused.

 

Partner or Parent- indefinite to remain applications

 

In all applications for indefinite leave to remain as a partner or parent the decision maker must consider whether the suitability requirements in paragraphs S-ILR.1.1. to 4.5. of Appendix FM are met.

 

These are set out in the Family Life as a Partner section of Appendix FM but also apply to Family Life as a Parent.

 

  • Under paragraph S-ILR.1.1. the applicant will be refused indefinite leave to remain on the grounds of suitability if any of paragraphs S-ILR.1.2. to S-ILR.1.10. apply.

  • Under paragraph S-ILR.2.1. the applicant will normally be refused indefinite leave to remain on grounds of suitability if any of paragraphs S-ILR.2.2. to S-ILR.2.4. apply.

  • Under paragraph S-ILR.3.1., when considering whether the presence of an applicant in the UK is not conducive to the public good, any legal or practical reasons why the applicant cannot presently be removed from the UK must be ignored.

  • Under paragraph S-ILR.4.1. the applicant may be refused indefinite leave to remain on the grounds of suitability if any of the paragraphs S-ILR.4.2. to S-ILR.4.5. apply.

 

In considering the suitability criteria under paragraphs S-ILR.1.2. to S-ILR.1.8. of Appendix FM, decision makers must refer to the Criminality Guidance.

 

In considering the suitability criteria under paragraphs S-ILR.1.9., S-ILR.2.2., S-ILR.2.4., S-ILR.3.1. and S-ILR.4.2. to S-ILR.4.4. of Appendix FM, decision makers must refer to the General Grounds for Refusal Guidance.

 

To meet the suitability requirement for indefinite leave to remain under paragraph S-ILR.1.5., the applicant must not have been sentenced to imprisonment for less than 12 months, unless 7 years have passed since the end of the sentence.

 

To meet the suitability requirement for indefinite leave to remain under paragraph S-ILR.1.6., the applicant must not have received a non-custodial sentence or other out-of-court disposal that is recorded on their criminal record within 24 months prior to the date on which the application is decided.

 

In considering the suitability criteria under paragraph S-ILR.1.10. of Appendix FM, decision makers must refer to the Restricted Leave guidance:

 

Under paragraph D-ILRP.1.2. if an applicant in the partner route does not meet the requirements of S-ILR.1.5. or 1.6., they can only be granted limited leave to remain, provided that they meet all the other requirements.

 

Under paragraph D-ILRPT 1.2. if an applicant in the parent route does not meet the requirements of S-ILR.1.5. or 1.6., they can only be granted limited leave to remain, provided that they meet all the other requirements.

 

(32) In addition to the suitability criteria, when are the Part 9 General Grounds  for refusal applicable?

 

In relation to entry clearance and leave to remain applications, applicants applying as a partner or parent under Appendix FM are not subject to the General Grounds for Refusal, except for the provisions in paragraph 320(3), (10) and (11) which continue to apply to applications under Appendix FM as set out in the General Grounds for Refusal:

 

In addition to the suitability criteria that an applicant must meet under Appendix FM, the following general grounds for refusal must be considered:

 

  • 320(3) – failure by a person seeking entry to the UK to produce to the Immigration Officer a valid national passport or other document satisfactorily establishing their identity and nationality, save that the document does not need to establish nationality where it was issued by the national authority of a state of which the person is not a national and the person’s statelessness or other status prevents the person from obtaining a document satisfactorily establishing the person’s nationality;

  • 320(10) – production by a person seeking entry clearance to the UK of a national passport or travel document issued by a territorial entity or authority which is not recognised by the UK as a state or is not dealt with as a government by the UK, or which does not accept valid UK passports for the purpose of its own immigration control; or a passport or travel document which does not comply with international passport practice; and

  • 320(11) – where the applicant has previously contrived in a significant way to frustrate the intentions of the Immigration Rules by: overstaying; breaching a condition attached to their leave; or  being an illegal entrant; orusing deception in an application for entry clearance, leave to enter or remain or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not); and there are other aggravating circumstances, such as absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re-documentation process.

 

If any of the General Grounds for Refusal above apply, the application must be refused.

 

 

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