UK ECO Operations Manual

[MikeCharlie]

Dear All,

As a new member, I stumbled across the manual for UK ECOs, which contains guidance for assess each visa application. The full manual can be found here;

http://www.ukvisas.gov.uk/servlet/Front ... 8331898513

I am pasting the section concerning settlement visas for marriage and partnerships. I found it quite helpful.

Apologies if you have seen this before.

Cheers,

Me.

Diplomatic Service Procedures - Entry clearance
Volume 1 - General instructions (28/09/06)

CHAPTER 13 - SETTLEMENT : FIANCÉ(E)S, PROPOSED CIVIL PARTNERS, SPOUSES, CIVIL PARTNERS, UNMARRIED AND SAME-SEX PARTNERS
13.1
Definitions
13.2
Immigration conditions upon entry to the United Kingdom
13.3
Definition of sponsor in fiancé(e)/proposed civil partners/spouse/civil partner/unmarried and same-sex partner applications
13.4
Fiancé(e)s/proposed civil partners and how they qualify (Rules paragraphs 290-295)
13.5
Spouses/civil partners and how they qualify (Rules paragraphs 277-289)
13.6
Spouses/civil partners and dependants of refugees (see Chapter 16)
13.7
Interpreting "present and settled"
13.8
Visit for marriage/civil partnership
13.9
Evidence required for fiancé(e) and proposed civil partnership applications
13.10
Validity of marriages
13.11
Validity of civil partnerships
13.12
Requirement to have met
13.13
Intention to live together: residence after arrival in the UK
13.14
Unmarried and same-sex partners and how they qualify
13.15
Entry clearance endorsements
13.16
Interviewing
13.17
Attendance of Sponsors at visa interviews
13.18
Reluctant spouses (fiancé(e)s)
13.19
Polygamous and potentially polygamous marriages
13.20
Age requirements for fiancé(e)s, proposed civil partners, spouses and civil partners (Rules paragraph 277)
13.21
Bereaved spouses/civil partners (Rules paragraph 287(b))
13.22
Foreign spouses/civil partners of members of the Diplomatic Service/British Council/H M Forces (Rules paragraph 281-289)

ANNEXES

13.1
Overseas divorces
13.2
Validity in the United Kingdom of polygamous marriages
13.3
Immigration Rules for polygamous marriages
13.4
Domicile
13.5
Domicile questionnaire
13.6
Schedule 20 - A list of recognised overseas same sex relationships
13.7
Civil Partnership Act 2004


CHAPTER 13 - SETTLEMENT: FIANCE(E)S, PROPOSED CIVIL PARTNERS, SPOUSES, CIVIL PARTNERS, UNMARRIED AND SAME SEX PARTNERS

13.1 - Definitions
A fiancé(e)/proposed civil partner in this context is a person who

* wishes to enter the UK with a view to marriage/civil partnership to a person who is either
* already present and settled in the United Kingdom;

or

* will be admitted for settlement in the UK when arriving there, and intends permanent settlement in the United Kingdom.

A spouse/civil partner is a person who qualifies to live permanently in the United Kingdom because he/she is married to/in a civil partnership with a person who is either present and settled in the UK or will be admitted for settlement in the UK when arriving there.

An unmarried/same sex partner is a person who meets the criteria set out inparagraph 13.13 (i) - (iv) below.

13.2 - Immigration conditions upon entry to the United Kingdom
A person holding an entry clearance as a fiancé(e)/proposed civil partner will initially be admitted to the United Kingdom for 6 months, with a prohibition on employment until after marriage/civil partnership. Once the marriage/civil partnership has taken place and after satisfactory completion of a probationary period (normally 24 months) set by the Home Office, indefinite leave to remain may be granted.

A person holding an entry clearance as a spouse/civil partner will normally be admitted to the United Kingdom for an initial period of 24 months. After satisfactory completion of this period, indefinite leave to remain may be granted. However, where an applicant has been married to a UK citizen and both have been living abroad for more than 4 years, Indefinite Leave to Enter may be granted.

13.3 - Definition of sponsor in fiancé(e)/proposed civil partner/spouse/unmarried and same sex partner applications
In a fiancé(e)/proposed civil partner application, the term ‘sponsor’ refers to the person whom the applicant is intending to marry/enter into a civil partnership with.

In an application as a spouse/civil partner, the sponsor is the person to whom the applicant is married/in a civil partnership with. In applications from unmarried or same sex partners, the sponsor is the person with whom the applicant is in a relationship with and intends to continue living.

13.4 - Fiancé(e)s/proposed civil partners and how they qualify (Rules paragraphs 290 -295)
For an applicant to qualify for admission as a fiancé(e)/proposed civil partner, you must be satisfied that:

* the sponsor is present and settled in the United Kingdom, or is to be admitted for settlement at the same time as the applicant arrives in the UK;
* the sponsor and the applicant are aged 18 or over;
* each of the parties intends to live permanently with the other as his or her spouse/civil partner after the marriage/civil partnership;
* the parties to the proposed marriage/civil partnership have met;
* adequate maintenance and accommodation without recourse to public funds will be available for the applicant until the date of the marriage/civil partnership;
* after the marriage/civil partnership there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively;
* after the marriage/civil partnership the parties will be able to maintain themselves and their dependants adequately without recourse to public funds.

You should also be satisfied that there is no impediment to the proposed marriage/civil partnership (see section 13.9 below for instructions).

Guidance on how to assess the above qualifications is given in the remainder of this chapter except for that on maintenance and accommodation which is given in Chapter 9.

Children of fiancé(e)s/proposed civil partners may also qualify for admission. This is dealt with in Chapter 14.

13.5 - Spouses/civil partners and how they qualify (Rules paragraphs 277 - 289)
For an applicant to qualify for admission as a spouse/civil partner, you must be satisfied that:

* the sponsor is present and settled in the United Kingdom, or is to be admitted for settlement at the same time as the applicant arrives in the UK;
* the sponsor and the applicant are aged 18 or over;
* the parties to the marriage/civil partnership have met;
* the marriage/civil partnership is subsisting and each of the parties intend to live permanently with the other as his or her spouse/civil partner;
* there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively;
* the parties will be able to maintain themselves and any dependants adequately without recourse to public funds.

Guidance on how to assess the above qualifications is given in the remainder of this chapter except for that on maintenance and accommodation which is given in Chapter 9.

13.6 - Settlement for spouses/civil partners and dependants of refugees: See Chapter 16.

13.7 - Interpreting "present and settled"

Present and settled means that the person concerned is settled in the UK and, at the same time that an application under the Immigration Rules is made, is physically present in the UK 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.

If the sponsor has temporarily travelled abroad to accompany the applicant in making the application, this will not prejudice the sponsor’s present and settled status, that is, such absence from the UK is not of itself a reason for refusal.

Sponsors may be British citizens. Strictly speaking, a British citizen who has been resident abroad but who returns to the United Kingdom to live is not ‘admitted for settlement’. However if he or she expresses the intention of returning to the United Kingdom to reside, you can regard him/her as present and settled there (see section 13.21 for sponsors who are crown servants serving overseas

Where the sponsor has not been resident in the UK for some time, you should take care to ensure that the maintenance and accommodation requirements will be met.

13.8 - Visit for marriage/civil partnership
See Chapter 10.

13.9 - Evidence required for fiancé(e) and proposed civil partnership applications
For applications in any settlement category, the Immigration Rules state that both the applicant and the sponsor must be aged 18 or over to qualify. Please see 13.20) for more details. This Rule does not apply to those coming to the UK to visit for marriage/civil partnership.

The marriage/civil partnership provisions are as follows:

A valid marriage/civil partnership cannot be contracted in the United Kingdom if:

* one of the parties to the intended marriage/civil partnership is under the age of 16; or
* one of the parties is aged 16 or 17 but does not have parental consent (this does not apply in Scotland); or
* one of the parties is not free to marry/enter into a civil partnership, i.e. is still legally married to someone else (but see below).

You should warn anyone going to the United Kingdom for marriage who has previously been married, or is aged 16 or 17, that he/she may be required to provide the registrar with evidence of freedom to marry before the Registrar can accept a notice of marriage. Where you have doubts about an applicant’s intention to marry/register a civil partnership, you should ask to see this evidence before issuing an entry clearance. The kind of evidence you will need to see is as follows:

* Widowed person: death certificate of the late spouse.
* Surviving civil partner: death certificate of the deceased civil partner.
* Divorced person: evidence of divorce, e.g.. divorce certificate
* Dissolved civil partnership: evidence of the dissolution e.g. dissolution certificate.
* Minors (aged 16 or 17): formal consents are required as follows:


-
Normally - both parents (in Scotland no parental consent is necessary; in Northern Ireland parental consent is necessary and the parents’ signatures must be certified by a Commissioner for Oaths or some other authority as specified in the Northern Ireland marriage laws);


-
parents divorced or separated - the parent having legal custody, or both parents if they share custody;


-
desertion - the parent who has been deserted;


-
parents deprived of custody - the person having legal custody;


-
one parent deceased - the surviving parent (if the deceased parent had appointed a guardian, the surviving parent and guardian if acting jointly, or either if the parent or guardian is the sole guardian);


-
both parents deceased - guardians or guardian appointed by the deceased parents or by the courts;


-
applicant illegitimate - the mother (or if she has legally been deprived of custody, the person given custody; or if she is deceased, the appointed guardian).

* Single persons of full age: the Registrar normally accepts the parties’ declaration that they are free to marry/register a civil partnership. ECOs should therefore accept a similar verbal statement by an applicant, together with any supporting correspondence from the person he or she is going to marry/register a civil partnership with, unless there are strong grounds to believe that one of the parties is still married/in a civil partnership or has been married/in a civil partnership previously and is concealing this fact. In such cases you should make whatever enquiries as seem appropriate.

Evidence of marriage/civil partnership arrangements
Of itself, a booking at a Registry Office or church is not proof that a marriage/civil partnership will take place.

The law relating to marriage/civil partnership in England and Wales does not allow for any arrangements to be made with a Registrar until the foreign national has arrived in the UK.

If the only reason for a couple not being free to marry/enter a civil partnership is that one of them is awaiting a divorce/dissolution of a civil partnership, entry clearance should not be refused for this reason alone (though ECOs would normally expect to see some evidence that divorce/dissolution proceedings are well under way). The reasoning behind this is that the divorce/dissolution may well come through within the six months leave to enter period, thereby enabling the couple to marry/register a civil partnership. ECOs should however be aware that divorce/dissolution proceedings may take longer than 6 months to resolve. The applicant may then apply for leave to remain as a spouse/civil partner. Should one of the partners still be waiting for a divorce/dissolution to come through at the end of the six-month period, they may apply to the Home Office for an extension of stay.

13.10 - Validity of marriages
In an application for entry clearance from a spouse, you must be satisfied that the parties are validly married to each other.

The recognition of any marriage which has taken place overseas is governed by the following:

* Is the type of marriage one recognised in the country in which it took place?
* Was the actual marriage properly executed so as to satisfy the requirements of the law of the country in which it took place?
* Was there anything in the law of either party's country of domicile that restricted his freedom to enter the marriage?

If the answers to the above questions are respectively "yes", "yes" and "no" then the marriage will be treated as a marriage for the purpose of the "spouse" paragraphs of the Rules, whether or not it is polygamous (but see separate guidance on dealing with applications from polygamous partners).

As the application for entry clearance will normally be made in the country in which the marriage took place, ECOs will be well placed to determine whether a particular marriage is valid under local law.

Marriage by proxy, by telephone or where no ceremony was required
The formal validity of a marriage should be determined exclusively according to the laws of the countries in which both parties are physically present when the marriage takes place. Therefore a telephone marriage celebrated whilst one of the parties is in the UK will not be valid, because telephone marriages are not valid in this country. However, in cases where the UK-based sponsor was overseas when the telephone marriage took place and the laws of both countries recognise such marriages, then the marriage process should be accepted as valid. Enquiries about the marriage laws of other countries may be referred to MMSR, Home Office.

Where ECOs have doubts over the validity of the marriage, the onus is on the applicant to show that it was celebrated in a country that recognises such marriages. In cultures which regard marriage as consisting of an offer made by a man and accepted by a woman, then a (telephonic) marriage should be considered as having taken place in the country in which the proposal had been accepted i.e. where the woman is. When the woman is resident in the UK, and the offer of marriage is made from overseas, then the marriage cannot be considered as valid because the proposal was accepted in the UK. However, if the woman is resident in a country where telephonic marriages are considered as valid then the UK must also recognise this marriage. Proxy marriages should be considered as having been celebrated in the country in which the ceromony took place.

If no ceremony is required under the laws of a particular country and a marriage can be concluded by an exchange of promises, it may be difficult to determine the country in which the marriage has been celebrated and under which law it should be considered. You may need to defer a decision on the issue of an entry clearance and request advice from MMSR in the Home Office.

The Rules requirement that both parties must have met may have a bearing on proxy or telephone marriages.

Evidence of marriage
In most cases a marriage certificate will provide satisfactory evidence that a marriage has taken place.

An original certificate or properly certified copy should always be obtained unless there are very exceptional reasons why one cannot be produced. ECOs should beware of photocopies of marriage certificates; they may look genuine but could contain altered details.

In countries where official registration of marriage is not compulsory (and official marriage certificates are not available) you should normally interview husband and wife separately about the circumstances of their marriage so that your decision can be made on the balance of probabilities.

13.11 - Validity of civil partnerships
Civil partnership is a legal relationship which can be registered by two people of the same sex. It gives same-sex couples the ability to obtain legal recognition for their relationship.

Certain relationships registered overseas may automatically be treated as civil partnerships from 5 December 2005, provided certain conditions are met.

The UK will recognise certain "overseas relationships", that is certain legal relationships registered under the law of another country or territory. Same-sex couples in these overseas relationships, will automatically be trated as having formed a civil partnership and will not need to register int he UK as well, as long as their overseas relationship meets the requirements set out in the Civil Partnership Act.

These include requirements that the overseas relationship is either (a) one of the specified relationships listed in Schedule 20 to the Act, or (b) a relationship that meets the "general conditions" contained in section 214.

Schedule 20 - A list of same sex overseas relationships can be found in Annex 13.6. New relationships will be added to Schedule 20 as more countries or territories bring in same sex marriage or civil partnership schemes.

General conditions - if an overseas relationship is not included in Schedule 20, the same sex couple may still qualify as a civil partner if the relationship meets the requirements of section 214, "general conditions". In order for an overseas relationship to meet the general conditions, it must, under the law of territory in which it was formed;

* be exclusive in nature (in other words the law must prevent a person from registering a relationship where they are already in a reationship of that kind or are lawfully married);
* be indeterminate in duration (this would exclude an arrangement where the parties agreed to live together for a fixed period of time); and
* result in the parties being treated as a couple or treated as married (this would exclude schemes like some local registers which have no legal effects under the law of that country or territory).

Where two people have registered an overseas relationship which is specified in Schedule 20 or meets these general conditions, they will be treated as having formed a civil partnership if they meet these requirements. The requirements can be found in section 212 and sections215 - 218 of the Civil Partnership Act.

There are restrictions where either of the propsed civil partners is subject to UK immiration control. A person will be subject to immigration control if they are not an EEA national and they require permission to enter or remain in the UK. EEA stands for European Economic Area and, for this purpose, includes Norway, Iceland, Liechenstein and Switzerland as well as the European Union countries.

The civil partnership provisions for persons subject to immigration control are exactly the same as those already in place for spouses. People subject to immigration control who wish to give notice of a civil partnership will need to do so together at a Register Office designed for that purpose. A list of all these offices is available at www.ind.homeoffice.gov.uk.

When they give notice, they will be required to produce one of the following:

* entry clearance granted to form a civil partnership
* a Home Office certificate of approval
* in definate leave to remain in the UK.

If a same-sex couple are in an overseas relationship that is not included in Schedule 20 or cannot meet the requirements of the general conditions, the applicants will need to meet the requirements of the same-sex partners' paragraphs of the Immigration Rules to be able to come to the UK under the settlement provisions.

13.12 - Requirement to have met
If the couple have not met by the time the ECO takes the decision on the application (i.e. if they have either not seen each other at all or not met in the sense of ‘to have made the acquaintance of’) all aspects of the application should still be considered (intention to live together, maintenance and accommodation etc) before any refusal notice is issued as such a notice must contain all the grounds for refusal. Obviously, there will be cases where ‘not having met’ is the sole ground for refusal. Some Tribunal decisions quoted below help to define the meaning of "to have met".

Action after an initial refusal
If, after the refusal of an entry clearance on the basis of the parties not having met, the couple can satisfy the ECO that a meeting in the sense of ‘making the acquaintance of’ has since taken place, the ECO must review the original decision and consider whether refusal is still appropriate.

This review can take place after an appeal has been lodged and in the majority of cases, assessing whether or not this "new evidence" meets the requirements of the Rules (see below) should be straightforward. If the ECO then considers that there is no impediment to issue of entry clearance, the applicant should be invited to withdraw any appeal that may have been lodged (although an appellant has the right to proceed with an appeal, whatever action is being taken by an ECO) and entry clearance may be issued.

This review need not be on the basis of a fresh application and fee, so long as any appeal has not been determined. Where an appeal has been determined then a fresh application and fee will be appropriate.

If, despite having satisfied the criteria of having met, the application still falls to be refused on other grounds, you should maintain the decision and inform applicant and sponsor. A suitable amendment to the original wording of the refusal should be made. If an explanatory statement has already been despatched then a short addendum should be forwarded to the Appeals Processing Centre for onward transmission.

Tribunal decisions
There have been a number of Tribunal determinations on how to interpret the phrase "to have met".

The following determinations are intended for guidance only and ECOs should be wary of routinely referring to Tribunal precedents when compiling explanatory statements. With case law constantly evolving there is a danger that precedent may have been overtaken by the time the ECO quotes it in support of a decision.

In Balvinder Singh, The Tribunal equated ‘to have met’ with ‘to have made the acquaintance of’. They took the view that it would be difficult to argue convincingly that two infants lying in cots side by side could satisfy the requirement ‘to have met’ but that it would not be so difficult to argue that children of 11 or 12 could be acquaintances of each other. In each case, whether the parties have made the acquaintance of each other will be a question of fact. There is no necessity for any meeting to have taken place in the context of the proposed marriage. In Rewal Raj, a differently constituted Tribunal took the same view of ‘to have met’ i.e. that it implies a requirement ‘to have made the acquaintance of'. In Abdulmajid Esmail Jaffer, The Tribunal endorsed the previous views and went on to say that ‘to have met’ meant something more than a mutual sighting. They also felt that a mere coming face to face followed by telephone or written contact would be insufficient to satisfy the rule, as would a family background together with such a face to face meeting. In their view the essential test of whether the rule had been satisfied was whether the couple had had a face to face meeting which in itself had resulted in the making of mutual acquaintance.

Internet relationships
It would not be sufficient for a relationship developed over the Internet to meet the requirement of the Rules unless the relationship included a personal face-to-face meeting between the couple concerned.

13.13 - Intention to live together; residence after arrival in the UK
Intention to live permanently with the other means an intention to live together, evidenced by a clear commitment from both parties that they will live together permanently in the UK immediately following the outcome of the application in question or as soon as circumstances permit thereafter.

In assessing this part of the Rules it will be useful, if possible, to have the views of both parties tested by the ECO. You should try to assess what the basic object of the marriage/civil partnership is (or will be). Where both partners are clearly committed to stay together irrespective of whether they live in the UK or not, the intention to live together will be shown. However if it is clear that the sponsor will not leave the UK to live with the applicant elsewhere should the application for entry clearance be refused, you will need to examine the reasons for this and how this bears on the relationship between the parties. In a case considered in the High Court in November 1996 Keen J held that "The concept of intention is no doubt a complex one, but it appears to me that one can indeed have a genuine intention, notwithstanding that the carrying out of that intention is dependent on, or could be frustrated by, some extraneous event." He went on to conclude that the requirement of the Rules relating to the intention of the parties to the marriage could be met where the British citizen (or legally resident foreign national) spouse insisted on remaining in the United Kingdom. In other words, a conditional intention to live together could be sufficient to meet the requirements of sub-paragraph (iv).

Residence after arrival in the United Kingdom
A couple should have discussed and come to an understanding about where they are going to live, if only in the short term. If they say that the subject has not been discussed, you should try to find out whythis is so.

The timing and nature of a decision regarding residence, who took the initiative and the way in which the decision was reached may be important factors in assessing whether or not the couple intend to live together permanently.

If the marriage/civil partnership is/was conditional upon the applicant securing admission to the United Kingdom, you should establish who made the condition and why. You should also ask whether, if the application for entry clearance is unsuccessful, the sponsor will live with the applicant in his/her present country of residence (or elsewhere).

13.14 - Unmarried (i.e. opposite sex) and same-sex partners and how they qualify (Rules paragraph 295A)
The Rules allow for persons who are not married or in a civil partnership to join a partner who is settled there provided certain conditions are met. The Rules also apply to partners of sponsors in the UK who have limited leave to enter or remain in the following categories:

Work Permit holders, overseas media representatives, sole representatives, private servants in diplomatic households, overseas government employees, Ministers of Religion, airport based operational ground staff, UK Ancestry (paras 128-193), businessmen, self-employed, investors, writers, composers, artists (paras 200-239), retired persons of independent means (paras 263-270) and EEA nationals.

The requirements are as follows:

* the applicant is the unmarried or same-sex partner (i.e. not married to or in a civil partnership with the sponsor) of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and,
* any previous marriage/civil partnership (or similar relationship) by either partner has permanently broken down; and,
* there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and,
* the parties have been living together in a relationship akin to marriage or civil partnership which has subsisted for 2 years or more; and,
* the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and,
* the parties intend to live together permanently.

Posts should be conscious that some individuals might be reticent about applying under this section of the Rules. These and other settlement applications should be handled sensitively and with discretion.

However, if Posts receive entry clearance applications in respect of unmarried or same-sex relationships where there are children and/or the relationship may be less than 2 year’s duration, such applications may be referred to NCC5 for consideration outside the Rules where compelling compassionate circumstances exist. Full supporting details should accompany such referrals.

The following gives detail on the terminology and required levels of documentation for the guidance of ECOs considering applications.

Previous marriage/civil partnership or similar relationship has permanently broken down
Each of the parties to the unmarried or same-sex partnership is required to provide evidence regarding any previous marital or other relationship akin to marriage/civil partnership they have had. They should be asked to specify how long ago the previous relationship was terminated, either by divorce/dissolved civil partnership or by separation.

The parties having been living together in a relationship akin to marriage/civil partnership which has subsisted for two years or more
"Living together", should be applied fairly tightly, in that we would expect a couple to show evidence of cohabitation in the preceding 2 year period. Periods apart would be acceptable for good reasons, such as work commitments, or looking after a relative which takes one partner away for up to 6 months where it was not possible for the other partner to accompany and it can be seen that the relationship continued throughout that period by visits, letters etc. Where a couple have been living together for the preceding 2-year period but have been dividing their time between countries and may, for example, have used the "visitor" category, then this will be sufficient to meet the requirement.

"Akin to marriage or civil partnership", is a relationship that is similar in its nature to a marriage or civil partnership which would include both unmarried and same-sex relationships.

In order to demonstrate a 2-year relationship evidence of cohabitation will be needed. In order to show a relationship akin to marriage/civil partnership, ECOs should look for evidence of a committed relationship. The following types of evidence would be useful in this respect:

* joint commitments, (such as joint bank accounts, investments, rent agreements, mortgage, death benefit etc);
* if there are children of the relationship, a record of their birth entry
* correspondence which links them to the same address;
* any official records of their address (e.g. Doctors records, DSS record, national insurance record etc);
* any other evidence that adequately demonstrates their commitment to each other

It will not be necessary to provide all of the above: ECOs are looking for satisfactory evidence of relationship.

Appeals
Unmarried and same-sex partner settlement refusals attract the right of appeal. (Third country unmarried and same-sex spouses of EEA nationals have no right of appeal under the 2000 EEA Regulations).

Unmarried and same-sex partners of UK accredited diplomats
See Chapter 5.

13.15 - Entry clearance endorsements
Entry clearances issued to a fiancé(e) or proposed civil partner should be endorsed ‘D: MARRIAGE/CP’. LTE 6 MONTHS CODE 3

Entry clearances issued to a spouse or male/female civil partner should be endorsed ‘D: SPOUSE/CP. The initial, surname and date of birth of the UK sponsor should be written underneath the vignette or on an adjacent page. Please do not enter the sponsor's first name as this will highlight whether the visa refers to a same sex relationship. LTE 24 MONTHS CODE 1.

Entry clearances issued to an unmarried partner should be endorsed: ‘D, TO JOIN/ACC PARTNER [ADD INITIAL AND SURNAME ONLY OF PARTNER].’ LTE 2 YEARS CODE 1.

Endorsements should not be prefixed ‘SETTLEMENT’

13.16 - Interviewing
If the sponsor accompanies the applicant, they should always be interviewed separately, (although see below)

Treating the applicant fairly
You should be careful and courteous while interviewing an applicant or sponsor.

Some "dos" and "don’ts" for conducting balanced interviews:

DO

* Express questions directly and clearly in terms which the applicant will understand. Take extra care when an interpreter is being used.

* Ensure that the applicant is fully aware of those topics which are relevant to the application and will be taken into account in considering the application.

* Put to both parties any contradictory statements between the applicant and sponsor or adverse inferences from an applicant or sponsor’s statements and invite their comments.

AVOID

* Steering the applicant to a particular answer.

* Using hypothetical situations in questioning.

DON’T EVER

* Question either party about their views on starting a family or about their sex life.

Chronology of events in the relationship
In settlement interviews, you will find it useful to ascertain the sequence of events in the relationship of the couple. You should find out when the couple first met; if there was an intervening period before the relationship became properly established, how long this was; when was marriage/civil partnership (or engagement) first discussed; and when was the decision to live in the United Kingdom made.

This information provides an important factual base for assessing potential marriages/civil partnerships of convenience and the intention to live together. By asking these questions of the applicant and sponsor individually, you will often be able to gauge the attitudes of both parties to their relationship.

Line of questioning
You will need to question the applicant (and if possible the sponsor) on a number of matters such as:

* the applicant’s circumstances and prospects in his or her own country;
* whether the applicant has previously attempted to settle overseas;
* whether the applicant has any relatives in the United Kingdom;
* the background to the decision to marry/enter a civil partnership e.g. discussion between applicant and sponsor or, if appropriate, their respective families; what discussions took place (and between whom) as to future place of residence;
* the sponsor’s family circumstances and any previous connection between the families;
* the relevance of the sponsor’s residence in the United Kingdom to the marriage/civil partnership.

The above list is not exhaustive but it should give ECOs some idea of the factors which may need to be considered. Obviously it will not be appropriate to question all applicants on all of these factors. Common sense should dictate in each case whether a particular subject is appropriate. The circumstances of an individual applicant may suggest factors which are not listed but which should be considered.

Recording the interview
It is essential that the actual questions and answers leading up to and including the critical points of an interview are accurately recorded and that the report includes interview notes. These should be typed if possible. You should bear in mind that accuracy is paramount. The report of the interview may be challenged in a public hearing in connection with an appeal against a refusal decision.

Considering the evidence
What applicants say about their reasons for seeking entry clearance must be of the first importance, although the weight to be given to the various pieces of evidence in any particular case is for an ECO to decide. In some circumstances the views of not only the sponsor but any other parties who may have been instrumental in bringing the applicant and sponsor together may be relevant. It is important that whilst maintaining the primacy of the applicant’s intentions, the intentions and evidence of other relevant persons are considered and given their due weight. You are not restricted to considering only such evidence as the applicant chooses to offer. You may make enquiries of your own to balance the evidence which an applicant has put forward.

In considering the evidence, it may be appropriate for you to defer the application to enable the sponsor to be interviewed by the Immigration Service in the United Kingdom. However, this should only be done in exceptional cases as such enquiries may take a considerable time to complete. ECOs should, where possible, try to reach a decision on the available evidence.

If there is a conflict of evidence between the applicant and the sponsor, and it appears that on the applicant’s side there is no intention of living permanently with the sponsor, the applicant will have failed to discharge the onus of proof and the application should be refused. Where such a conflict of evidence does arise it is important, in the interests of natural justice, that any discrepancies are put to the applicant and/or sponsor, if appropriate, and the applicant should be asked to account for such discrepancies as may exist.

Reaching the final decision
The burden of proof is on the applicant to satisfy the ECO that he or she meets the requirements of the Rules. In discharging that proof the applicant need only do so "on a balance of probabilities". You should weigh up the evidence before you as a whole, allowing for points both in favour of an applicant as well as any that may go against him. These applications have a right of appeal against the ECO’s decision and an explanatory statement will have to justify a decision to refuse.

13.17 - Sponsor's Attendance at visa interviews
A consistent approach is needed to ensure that all Posts offer the same advice to sponsors who ask to attend visa interviews. Current policy is that Posts have discretion on whether or not to admit sponsors to interviews. There is no blanket ban on sponsors attending. Equally they have no automatic right to attend. It is preferable to conduct the interview with the applicant alone, seeing the sponsor separately if necessary. ECOs should, therefore, draw on the following when sponsors make such requests:

* If a sponsor wants to speak to an ECO it can help to do this separately from the interview with the applicant. This helps ECO's to verify that the information presented by both is consistent;

* in considering an application, ECO's must concentrate on the circumstances and intentions of the applicant. Information from (and support of) a sponsor can be very helpful, e.g. when assessing maintenance/accommodation. It should be given full weight, but will rarely impact on the intentions of the applicant;

* Posts may encounter reluctant applicants (e.g. spouses, fiancé(e)s, domestic servants). In order not to compromise the confidentiality and safety of such applicants, ECO's usually ask to see them on their own. Maintaining a standard procedure for all applicants ensures an even handed approach and avoids drawing attention to the cases where reluctance is believed to be a factor.

Local visa information handouts should include the following advice:

* sponsors are not required to attend visa interviews overseas. In most overseas Posts it is standard practice for visa applicants to be interviewed alone, without the presence of sponsors, representatives etc.;

* if they choose to accompany the applicant to the Visa Section, sponsors might not be interviewed unless the Visa Officer decides that certain points need clarification;

* at the discretion of the ECO sponsors or representatives (e.g. solicitors) may be permitted to attend an interview with an applicant, but will be given observer status only.They may make notes but should not intervene.

Posts are reminded that it may, of course, in some cases be useful to take the opportunity of the sponsors presence to conduct a separate interview. Interviews with sponsors should not become the norm.However, Posts should meet requests from accompanying sponsors who ask to speak to the ECO dealing with the application.

13.18 - Reluctant spouses (fiancé(e)s)
Where a sponsor (usually a wife/fiancée but occasionally a husband/fiancé) tells you that s/he has been forced into a marriage and does not support the entry clearance application, s/he may ask that this information is not divulged as their family may take action against them. Where a sponsor gives such confidential information to an ECO it will not usually be appropriate to record these statements in the main body of the Q + A interview notes. The interview notes will form an integral part of any appeal and this information might result in adverse consequences for the sponsor. It will be more appropriate to record the statement separately. You should ask the sponsor to sign and date this statement and signify that it is true and has been given freely.

13.19 - Polygamous and potentially polygamous marriages
This instruction aims to explain to ECOs the circumstances in which a polygamous spouse will or will not qualify for admission to the United Kingdom.

You should consider first whether the marriage is valid under the laws of the United Kingdom. For wives, see Annex 3. If it is not, the spouse should be refused on that account alone without considering the requirements of the Rules relating to polygamous spouses.

If the marriage is valid, you should then consider whether the spouse qualifies for admission to the United Kingdom under the Rules (Paragraphs 278-280). Guidance in assessing this is given in Annex 4.

The important thing to remember in applying the Rules for polygamous spouses is that it is not the order in which polygamous spouses marry which is crucial but the order in which they go to the United Kingdom.

Children of polygamous spouses
If a polygamous spouse is disqualified by the Immigration Act/Rules from entering the United Kingdom, any children he or she had by her spouse may not qualify for entry to the United Kingdom, depending on the circumstances and in particular the operation of the Legitimacy Act 1976 (see Chapter on Settlement for Children).

Polygamous spouses entering in their own right
A polygamous spouse may have an entitlement to enter the United Kingdom in his or her own right - for example as a returning resident. A woman who obtained settlement in the United Kingdom on the basis of a marriage which has since ended and who travels to another country where she enters into an actually polygamous marriage, has the right to return to the United Kingdom under Paragraph 18 of the Rules, provided that she does so within the 2 year limit.

A polygamous spouse may also enter in his or her own right as a visitor or a student, provided of course that he or she meets in full the requirements of the relevant paragraphs of the Rules. Such a spouse will not, however, qualify for entry clearance in a temporary capacity leading to settlement (for example, as a spouse of a work permit holder) if that would result in the formation of a polygamous household in the United Kingdom.

Termination of previous marriage
Even where it is suspected that a divorce of convenience has taken place and that a man, for example, is continuing to live with a previous wife, entry clearance cannot be withheld from a second wife, even if a polygamous household will be created as a result.

A polygamous spouse may apply for entry clearance and support the application by claiming that a previous marriage (which would otherwise disqualify him or her) has been dissolved or terminated by the death of the spouse concerned. ECOs should be wary of death and divorce certificates in such circumstances, especially where talaq or customary laws are involved. Guidance on talaqs/customary divorces is given in Annex 1.

Potentially Polygamous Marriages
Hitherto, potentially polygamous marriages (i.e. celebrated under a law which permits polygamy) where the spouse is domiciled in the UK have been considered invalid in UK law. (Potentially polygamous marriages where the husband is domiciled in the UK have been considered valid in UK law since in 1982). An amendment to the Matrimonial Causes Act 1973 by the Private International Law (Miscellaneous Provisions) Act has served to legitimate all potentially polygamous marriages where they are, in fact, monogamous.

As a result of this amendment to the 1973 Act, in cases where it is clear that the marriage is actually monogamous, potentially polygamous spouses can now be issued with Husband/Wife ECs, subject to the usual criteria of the Rules being met. Such marriages will, however, be deemed to be made void by any subsequent marriage by one of the parties or by an annulment.

13.20 - Age requirements for spouses and civil partners (Rules paragraph 277)
A valid marriage/civil partnership cannot be legally undertaken in the United Kingdom by a person under the age of 18 years.

The Rules do not allow any person to be granted an entry clearance as the spouse or civil partner of another if the applicant will be aged under 16 on the date of arrival in the United Kingdom. Any entry clearance application from a spouse/civil partner (i.e. a married person or a person in a civil partnership who would be under the age of 18 years when entering the UK) should therefore be refused. An applicant who is over the age of 16 but married to/in a civil partnership with a person who is under 18 should likewise be refused entry clearance.

In cases where the applicant is within a couple of months of his or her eightteenth birthday, and the other party is 18 or over, you have discretion to issue entry clearance but only when the person under 18 has reached his/her 18th birthday.

When an applicant has reached the age of 18 but was married or in a civil partnership before attaining that age, the ECO will need to consider the question of whether the marriage or civil partnership is valid. Although no child under 16 is able to contract a valid marriage in the United Kingdom, the laws of a number of countries do allow children under 16 to contract valid marriages in certain circumstances.

There are two requirements which have to be met before an overseas marriage with one party under 16 can be recognised under the laws of the United Kingdom:

* the marriage is valid in the country in which it took place (i.e. it is legal for parties under 16 to marry and the marriage itself complied with the formal requirements of the country in which it took place);
* both parties to the marriage had the legal capacity under the law of their domicile to marry each other (i.e. the law of their domicile allowed marriage with a person under 16, and they were free to marry in other respects).

Refusal wording is given in the annex to the Refusals chapter.

13.21 - Bereaved spouses/civil partners (Rules paragraph 287(b))
Although rare, it can occasionally happen that a sponsor dies before his or her spouse/civil partner is able to complete the 24 month probationary period (see 13.2). In such cases it is possible for the Home Office to grant Indefinite Leave to Remain (ILR) to the surviving spouse/civil partner providing the relationship was subsisting at the time of the sponsor’s death. Applications for ILR in these circumstances are made in the UK but it is possible, though unlikely, that you may receive an application overseas. If you do, you should refer details of the application to the HO for consideration.

13.22 - Foreign spouses/unmarried or same-sex partners/civil partners of members of Diplomatic Service/British Council/HM Forces and DFID (Rules paragraphs 281-289)
Permanent members of the Diplomatic Service and comparable UK based members of the British Council and HM Forces are regarded as being present and settled in the UK for immigration purposes while undertaking a tour of overseas duty. This means that a foreign national spouse/civil partner of such a member may be issued a settlement visa and travel to the UK with or without their partner as long as the other requirements of the settlement Rules relating to spouses are met. The 24 month probationary period still applies (para 13.2) but time spent abroad on a posting counts towards this. The foreign spouse/civil partner may return to the UK at any time and can lodge an application with the Home Office for ILR one month before the expiry of the existing leave to enter/remain. The spouse/civil partner making the application must remain in the UK while his/her application is under consideration.

Applications can be made in person to the Public Enquiry Office, Lunar House, Croydon CR9 1AT or if time permits, by registered post. Application forms (SET(M)) can be obtained on the IND website (www.ind.homeoffice.gov.uk)

The above provisions also apply to unmarried or same-sex partners who meet the requirements of paragraph 295A of the Rules (see para 13.13) and spouses, civil partners, unmarried and same-sex partners of permanent members of DFID on full overseas postings, so long as the DFID employee is a British citizen or is settled in the UK. Officers from other government departments do not currently benefit from the provisions.

Returning residents (Rules paragraph 18)
Spouses, civil partners, unmarried and same-sex partners falling within the above provisions who have ILR will not lose this status if they are absent from the UK for more than two years while accompanying their partner on a tour of duty overseas.