Unmarried Partner visa – real case example
15 October 2013
These days, visas are printed on a separate biometric card rather than being stamped in the passport. They are sent by the UKBA enclosed in a small brown envelope. So it is always pleasing when we see these envelopes as it is another successful case. This time, on Friday afternoon, 4th October 2013, my colleague places this brown envelope on my desk and I start wondering who this successful applicant could be. I open the envelope and discover that it is Ms W, a lady from China (I have protected her identity in this article). I could not be happier for her.
Ms W’s visa is an Unmarried Partner visa granted for 2.5 years. After a total of 5 years, she can apply for ILR. This article will look at the circumstances of why this application was made and provide a detailed analysis of the Unmarried Partner visa.
Ms W’s 10 year Long Residence refusal
Ms W’s application for had been refused because after she submitted her application, she was fined at a criminal court for possessing a false trade mark for sale. Her fine was for about £300 plus £400 prosecution costs. Ms W ran a fashion accessories shop and was convicted because one type of goods had a trademark which looked similar to a world famous fashion design trademark. In the UK, a fine by a criminal court results in a 5 year criminal record. To apply for Indefinite Leave to Remain, the applicant must not have a criminal record. So in this case, Ms W had her refused. As is common with immigration refusals these days, the UKBA also informed Ms W of their decision to remove her from the UK because she does not have a valid visa now.
Ms W then called me to seek some advice. I felt although her application had been refused, the refusal letter was good in that it does not accuse Ms W of failing to disclose she had been convicted of an offence whilst her application was pending. If it did mention this, then it is likely the UKBA will then accuse her of deception and enforce a 10 year mandatory visa ban. We discussed appealing this refusal and discussed potential human rights reasons because she has now been in the UK for 12 years. But I was not convinced that an appeal was the right way forward because China was her home country where she has spent over 20 years of her life there. I felt an Immigration Judge would also have the same views and refuse the appeal.
But during the conversation, I discovered she had a boyfriend (Mr X) whom she has been in a relationship with for about 10 years, since 2003. Mr X is also Chinese and obtained his ILR in 2011. They have also been co-habiting for the same 10 years. I then advised her to make an application for an Unmarried Partner visa and that this application should be made within 28 days of the refusal. This means that even though Ms W does not have a valid visa, as long as she makes the application within 28 days of the date of the refusal letter, then she can make a valid application. This is despite the fact the UKBA have retained her original passport and other original documents as they are planning to remove her from the UK.
Ms W did not know the existence of Unmarried Partner visa applications as she thought only those who were married could make a spouse visa application. I informed Ms W that in the UK and as well as in Europe, Unmarried Partners who co-habit together are seen as equal to husbands and wives in the eyes of the law.
Unmarried Partner visa application
So Ms W arranged a time at our office one Saturday afternoon and she also came with her boyfriend, Mr X. We filled in the application form together and I started organising the documents. In terms of the documents required, there were 3 parts that were essential to Ms W’s application:
(i) Proving that she has co-habited with Mr X for the past 2 years;
(ii) Demonstrating that Mr X has been earning £18,600 per annum; and
(iii) Demonstrating why her criminal conviction is not a serious offence.
Because Ms W and Mr X do not have bills or bank accounts in joint names, they have to demonstrate that they have about 12 items of correspondence addressed to them individually. Ms W and Mr X did have various correspondence such as bank statements, property deeds, payslips, doctor letters, credit card bills, mobile phone statements, and UKBA letters addressed to them individually at the same address. However, there were not 12 different items of correspondence. So one of their friends wrote a letter to confirm that he has known Ms W and Mr X for a long time and that he knows they have been co-habiting in a relationship for a few years. We also attached a few photographs of the couple together.
Maintenance of £18,600 per annum
There were some difficulties in proving Mr X had the required minimum salary of £18,600 per annum. Mr X was the shareholder and director of his company and he was earning £10,000 per annum. However, he increased his salary to around £3,250 per month (gross) so that over a one year period, he would earn about £18,700. I also explained in our cover letter to the UKBA that a high court case shows that shareholders and directors can also be employees of their own company.
I was worried that the UKBA may not be satisfied with this explanation. But I was also aware that Ms W was not permitted to work at present because she does not have a valid visa. So instead, we provided her Chinese bank account statement together with a bank letter confirming she has about 300,000 RMB in China, and that this sum has been held for over 6 months.
In our cover letter to the UKBA, we explained that Ms W’s criminal conviction was not a serious offence. She purchased the goods from a supplier and it turned out the trademark logo resembled a world famous trademark logo. We also explained that she did not exercise dishonesty in her application by failing to tell the UKBA about this conviction because (i) at the time of her application she was not convicted and (ii) she is now appealing against that conviction.
We also explained to the UKBA that for Chinese people, people are either married or single. The concept of Unmarried Partners is new to Ms W. We explained this because I saw in Ms W’s previous application forms, she put herself down as ‘single’ and there was a risk the UKBA will question the relationship she had with Mr X if she had never mentioned this before in her previous applications.
2 months after we submitted her application, we received the nice brown envelope containing her visa card. Ms W was delighted with the outcome and I was genuinely happy for her.
When an applicant gets a refusal letter from the UKBA, the first thing to do is not to panic! One thing that may spring to mind is to appeal as the UKBA will attach appeal forms to the refusal letter. However, appealing can be dangerous if adverse facts are disclosed to the Immigration Tribunal. It is important that professional advice is sought as an alternative visa can be applied for. In Ms W’s case, an Unmarried Partner visa was identified as the only viable visa that she could apply for, which was successfully obtained. It is important to gather correspondence for each partner to demonstrate that they have co-habited together for the past 2 years. But other evidence, such as photos and letters from friends can be useful as they all count as evidence. With a criminal record, an applicant’s application under the family route has a stronger human rights claim than an application under other routes.