Immigration and Marriage - an outline of the legal position

26 April, 2011

Legal Paper MW 68 originally published July 2005
Revised April 2011

This paper is not intended as an authoritative statement of the law but rather as a summary of the position.

1 The requirements for entering the United Kingdom as a spouse are currently set out in paragraph 281 of the Immigration Rules (HC 395) as follows:

281 The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:

(i)(a) the applicant is married to a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; or
(b) the applicant is married to a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married at least 4 years ago, since which time they have been living together outside the United Kingdom; and
(ii) the parties to the marriage have met: and
(iii) each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting; and
(iv) 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
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.

2 Between 1983 and 1997 the primary purpose rule imposed an additional requirement that the applicant must show “that the marriage was not entered into primarily to obtain admission to the United Kingdom”. While it was in force the Rule attracted a great deal of attention and controversy and became a major ground for refusing applications and dismissing appeals against refusal. In 1997 shortly after the General Election of that year it was abolished.

3 Arranged marriages are the norm in India, Pakistan and Bangladesh and it has been a common practice in recent years for sons and daughters of ethnic families settled in the United Kingdom but having continuing family and social ties in those countries to arrange marriages between their children and spouses from the sub-continent. Requirement (ii), that the parties to the marriage must have met, is obviously important and compliance is frequently achieved by arranging a family visit to the sub-continent. In the course of such visits marriages may be arranged and may take place either then or on a later visit.

4 In all asylum and immigration appeals credibility is an important issue and in marriage cases it will be particularly

important in assessing how genuine the marriage is and whether requirement (iii) of paragraph 290 is met. There will often be evidence to show that the man and wife have spent very little time together before the actual wedding. They may be asked about their intentions as to where they would live after the wedding. If the reply is “we did not even discuss that” – not an unusual reply – that may be taken as a statement lacking in credibility and militating against a finding that this was a genuine marriage. The idea that a couple seriously contemplate marriage without even considering in which country they will live once married is clearly absurd. Frequently husband and wife are interviewed separately and give conflicting answers to the same questions e.g. about the wife’s employment in the United Kingdom; any such conflict is also damaging to the applicant’s case.

5 The question often arises as to what extent the daughters are willing partners to marriages so arranged. Regrettably, there has been increasing evidence in recent years of forced marriages, usually between daughters of ethnic families in the United Kingdom and men from the sub-continent, as a result of agreements between the elders of the families concerned. If, in the course of assessing an application/appeal, it becomes apparent that the woman was a reluctant bride, that the marriage was not genuine, even though it had all the outward trappings of a normal arranged marriage, and that the main motive was to use it as a means to enable the husband to enter the United Kingdom, the decision taker should conclude that requirement (iii) has not been met.

6 Paragraph 282 of the Immigration Rules provides that a spouse who meets the requirements of paragraph 281(i)(a) may be admitted for an initial period not exceeding 2 years. (A spouse who meets the requirements of paragraph 281(i)(b) may be granted indefinite leave to remain.) Such a spouse may be granted an extension of stay beyond the initial period in accordance with the requirements of paragraph 284, subject to being able to show that the requirements of paragraph 281 are still being met and that the marriage was not entered into as a means for the applicant to avoid deportation.

Fiancé(e)s

7 Paragraph 290 of the Immigration Rules is the main provision which governs leave to enter for fiancé(e)s and imposes the same requirements, mutatis mutandis, as those set out in paragraph 281, quoted above. Paragraph 289AA, an amendment introduced in April 2003, prohibits the grant of entry clearance (a) to an applicant for such leave aged under 16 or (b) in any case where the sponsor in the United Kingdom is aged under 18. Under paragraph 291 leave to enter as a fiancé(e) is to be granted for a period not exceeding 6 months, to enable the marriage to take place. Under paragraph 293, an extension of stay as a fiancé(e) may be granted if good cause can be shown why the marriage did not take place during that period and there is satisfactory evidence that the marriage will take place at an early date.

Sham marriages

8 For an updated explanation of this subject please refer to legal Legal Paper MW 228.

Unmarried partners

9 Paragraphs 295A – 295O of the Immigration Rules, introduced in April 2003, set out the rules for leave to enter or remain for unmarried partners. The main rule is 295A, in the same terms as paragraph 281 above, mutatis mutandis, but with two additional requirements which have to be met before the requisite entry clearance will be granted. It must be shown (i) that any previous marriage or similar relationship by either partner has permanently broken down and (ii) there is no consanguineous relationship between the two partners.

Harry Mitchell QC
Honorary Legal Adviser