Immigration law

Immigration and the Civil Partnership Act 2004

The Civil Partnership Act 2004, which came into force on 5 December 2005, provides legal recognition for relationships of same-sex couples.


Section 1 of the Act creates the new legal relationship of 'civil partnership', defined as a 'relationship between two people of the same sex'. Once entered into, a civil partnership continues very much like a marriage until either dissolution, annulment or the death of one of the 'civil partners'. Section 3(1) states that a couple may enter into a civil partnership provided:

They are of the same sex;

Neither of them is already in a civil relationship

Neither of them is lawfully married;

Neither of them is under the age of 16;

They are not within 'prohibited degrees of relationship' (part 1 of schedule 1 to the Act sets out a full list of prohibited degrees of relationship);

If one or both of them are under the age of 18, they have obtained the consent of an 'appropriate person' (part 1 of schedule 2 to the Act contains a table of individuals deemed to be an 'appropriate person').

Entering into a civil partnership creates both responsibilities and obligations on the civil partner which impact upon a broad range of issues including recognition for immigration and nationality, which this article will focus on. The following is a general summary of civil partnership law and procedure where one of the partners is 'subject to immigration control' in the UK. Further, although the law and procedure relating to civil partnership throughout the UK is broadly similar, the following is limited to England and Wales.





Entering a civil partnership while in the UK


Ordinarily registration will occur through what the Act defines as the 'standard procedure', consisting of a two-stage process set out in sections 8 to 17. The couple must first give notice of their proposed civil partnership to a 'registration authority' (a register office in the area of the local authority in which the relevant individual lives) and, second, they must register the civil partnership.




Notice of proposed civil partnership


Both partners are required by section 8 to give notice to their respective registration authority of their intention to enter into a civil partnership. The notice sets out the name, address, age, nationality, marital or civil partnership status, occupation and intended venue for the civil partnership. Once notice is given, the information (excluding the address of the individual) is displayed at the relevant register office for 15 days to provide an opportunity for objections to be made by the general public.


A person who is 'subject to immigration control' (defined by paragraph 1(2) of schedule 23 as a person who is not a European Economic Area (EEA) national and who 'requires leave to enter or remain in the UK') can only give a notice of the proposed civil partnership if he fulfils, what is referred to as, the 'qualifying condition'.




The qualifying condition


Irrespective of whether or not one of the couple is 'subject to immigration control', section 8 requires a notice of proposed civil partnership to include a 'declaration' by the person giving the notice confirming that there is no lawful hindrance or impediment to the proposed civil partnership. Where one of the partners is subject to immigration control, the declaration must include a statement by that partner that he fulfils a 'qualifying condition' listed in paragraph 2(1) of schedule 23, namely, that he either:

Has an entry clearance granted expressly for the purpose of enabling him to form a civil partnership in the UK; or

Has the written permission of the Home Secretary to form a civil partnership in the UK (in the form of a certificate of approval from the Immigration and Nationality Directorate).

In addition, in 'subject to immigration control' cases, the notice of proposed civil partnership can only be given to an exhaustive list of permitted registration authorities. A certificate of approval will not usually be issued if the partner subject to immigration control has been granted leave to enter or remain for a period of six months or less, or if having been granted leave for a period of more than six months, less than six months of that leave remains.




Entry clearance granted expressly for the purpose of enabling a civil partnership to be formed in the UK


Following the coming into force of the Act, paragraph 290 of the Immigration Rules was amended to permit individuals to enter the UK as 'proposed civil partners', namely as individuals who seek to enter the UK to form a civil partnership with their UK-based partners. Provided the couple can establish that they have met, intend to permanently live together as civil partners and can adequately accommodate and maintain themselves without recourse to public funds, entry clearance can be granted for six months to permit the non-UK based partner to enter the UK, enter into a civil partnership with the UK-based partner and apply for leave to remain.




Visitors seeking to enter the UK solely for the purposes of entering into a civil partnership


Paragraph 56D of the rules permits two non-EEA nationals to be granted entry clearance for the limited purpose of temporarily entering the UK to form a civil partnership. In order to be granted entry clearance for this purpose, the applicants need to satisfy the entry clearance officer that they:

Are genuinely seeking entry for a limited period and intend to leave the UK at the end of the period;

Do not intend to take employment or study while in the UK;

Can maintain and accommodate themselves while in the UK;

Can meet the costs of their journey out of the UK;

Intend to give notice of civil partnership in UK during the period for which entry is sought (a period which cannot exceed six months); and

Can, if required, produce satisfactory evidence of the arrangements for giving notice of the civil partnership or of the civil partnership.

Once entry clearance as a civil partnership visitor is granted, the couple can enter the UK and give notice of a proposed civil partnership without having to obtain a certificate of approval. At the end of their period of leave, they should depart from the UK.




Recognised 'overseas relationships'


Same-sex relationships registered outside the UK may be recognised as a civil partnership in the UK in one of two ways. First, a relationship will, by virtue of sections 212 and 215, automatically be recognised in the UK and treated as a civil partnership if the relationship and country are set out in the list of 'specified relationships' listed in schedule 20 (for example, geregistreed partnerschap in the Netherlands). Alternatively, a relationship registered abroad can be recognised in the UK if it satisfies the 'general conditions', namely that:

The relationship is of indeterminate duration;

The effect of the registration was for the parties to be treated either as a couple or married; and

Neither of the partners was in a similar relationship with, or married to, anyone else at the time of the registration of their relationship abroad.

Registration under the Act while outside the UK


Provisions are also made in section 210 for a couple, at least one of whom has to be a UK national, to register a civil partnership at British consulates, embassies and high commissions, provided:

The couple cannot, in the relevant country, enter into a relationship which would amount to an 'overseas relationship' for the purposes of the Act; and

The authorities of the relevant country 'will not object to the registration'.

Leave to remain in the UK as the civil partner of a person settled in the UK


A person who has entered into a civil partnership while in the UK with a partner who is either a British citizen or who has indefinite leave to remain, can apply, under paragraph 284 of the rules, for leave to remain as the civil partner of that settled person provided:

The non-settled partner must have leave to enter or remain in the UK at the time of the application for more than six months; and

The partners can accommodate and maintain themselves without recourse to public funds.

Successful applications will, under paragraph 285 of the rules, result in the grant of leave for two years during which the non-settled partner would be able to work but without recourse to public funds. Provided the civil partnership is still in existence at the end of the two-year period, and there is no foreseeable risk of future separation or recourse to public funds, the non-settled partner can apply for indefinite leave to remain at the end of the two-year period under paragraph 287 of the rules. Indefinite leave to remain can also be granted if the settled partner dies during the probationary two-year period or if the non-settled partner becomes a victim of domestic violence at the hands of the settled partner.




Immediate settlement following cohabitation outside the UK for four years


Under paragraph 281(i)(b) of the rules, a civil partner who has lived for four years outside the UK with a partner who either has the right of abode or who has indefinite leave to remain in the UK can apply for entry clearance for an indefinite period to live with that partner. The usual requirements of intention to live together and adequate maintenance and accommodation without recourse to public funds apply.




Non-EEA partners of EEA nationals


An EU directive (2004/58/EC), due to be implemented on 30 May 2006, will extend the definition of 'family member' for the purposes of EU freedom of movement to include 'a registered partnership'. Until then, non-EEA registered partners of EEA nationals exercising treaty rights in the UK can, under UK immigration law (as opposed to EU law), apply to join their EEA partners. Non-EEA partners of EEA nationals exercising treaty rights in the UK can apply to enter the UK as proposed civil partners and, for the purposes of that application, the EEA partners will be treated as 'settled' in the UK.


The British government said that the Act was intended to pave the way for respect, recognition and justice for same-sex couples. Although a much welcomed piece of legislation, the extent to which that statement will reflect the experiences of partners, particularly those from developing countries, who are subject to immigration control in the UK remains to be seen.


Thanks to Shahram Taghavi for help in preparation of this article


By Laura Devine, Laura Devine Solicitors, London