To enter the UK as a "partner" under Appendix FM to the Immigration Rules ("FM" being short for "Family Member"), there are three possible ways to qualify as a "partner". First, as a "spouse". Second, as a "civil partner". Third, as an "unmarried partner".
The way that this third category – "unmarried partner" – is defined in the Rules has recently changed. Against the tide of increasingly high visa application fees and ever-tighter requirements in the Immigration Rules, the "unmarried partner" definition has seemingly been relaxed: the reference to a couple "living together" (i.e. cohabiting) for two years has been removed from the body of the Rules.
This post will compare the new definition with the old, examine the corresponding update in the newly published Guidance, and consider the implications for potential unmarried partner visa applicants.
The Old Definition of "Unmarried Partner": Living Together for at Least Two Years, and Proving Two Years' Cohabitation
The definition of "partner" was, and still is, tucked away in the introductory "Interpretation" section of the Immigration Rules, in paragraph 6.2.(b) of the Immigration Rules.
Until 31 January 2024, those looking to enter the UK as a "partner" had to fit into one of the following three definitions:
- spouse; or
- civil partner; or
- unmarried partner, where the couple have been living together in a relationship similar to marriage or a civil partnership for at least two years.
(Please note that there is also provision for entry as a fiancé(e) or proposed civil partner, but these are short-term "gateway" routes that allow for a later switch into permission as a spouse/civil partner from within the UK.)
This old definition of "unmarried partner" in subparagraph (c) did not open the route to any and every partner who was "unmarried"; it qualified the definition, limiting it to couples who had been "living together" in a relationship similar to marriage or civil partnership for at least two years.
This meant that it was not enough to have been in a relationship for at least two years. It was also not enough to have been in a relationship similar to marriage or civil partnership for two years. A couple must have been "living together" in such a relationship for at least two years.
As a result, couples who did not live together – or who had not lived together for "at least two years" – could not strictly meet the definition of "partner" in the Immigration Rules, no matter how loving or long-term the relationship. This posed particular challenges for couples who had chosen not to live together due to, for example, cultural, religious or economic reasons.
Likewise, the definition caused difficulties for couples who had cohabited for two years in a relationship similar to marriage/civil partnership, but who struggled to gather evidence to prove those two years of cohabitation. Showing two years of cohabitation can be very burdensome, particularly in countries where it is difficult to get hold of official or formal evidence of address.
The New Definition of "Unmarried Partner": No More Two-Year Cohabitation Requirement
Since 31 January 2024, in light of the Statement of Changes in the Immigration Rules (HC 246), a new definition of "unmarried partner" has entered into force.
The definition of "partner" in paragraph 6.2.(b) of the Immigration Rules now reads as follows:
"Partner" means a person's:
(a) spouse; or
(b) civil partner; or
(c) unmarried partner, where the couple have been in a relationship similar to marriage or civil partnership for at least 2 years.
The reference to "living together" – and therefore the requirement that unmarried partners could only qualify if they had cohabited for two years – has been removed from the Rules.
The reference to "two years" now relates only to the "relationship similar to marriage or civil partnership". In other words, couples can now qualify as "partners" for the unmarried partner visa as long as they have been in a relationship similar to marriage/civil partnership for two years, even if they have never cohabited.
The new Guidance on Family life (as a partner or parent) and exceptional circumstances confirms the removal of the cohabitation requirement:
The 2-year period for a relationship between a couple who are not married or in a civil partnership must have been completed prior to the date of application. The 2- year period does not require evidence of cohabitation for the period and will take account of instances where, for example, the couple are currently living apart for work reasons in order to meet the financial requirements of the rules. The essential point is that the relationship has been genuine and subsisting for the duration of the 2-year period and continues to be at the date of application.
Beyond this statement, however, there is no explanation of what a relationship "similar to marriage or civil partnership" looks like, or how it ought to be evidenced. The Guidance simply refers applicants to the section on evidence that could show a relationship is "genuine and subsisting".
As such, at least on the face of the new definition and the Guidance, it appears that an unmarried partner must simply demonstrate that they have been in a "genuine and subsisting" relationship for at least two years by the date of application, and that the relationship continues to be genuine and subsisting at the date of application.
However, given the lack of clarity surrounding the new definition and how it will be applied by the Home Office in practice, it is recommended that applicants seek legal advice on this matter until further clarity is forthcoming.
Do I Now Qualify as an "Unmarried Partner"?
The new definition in the Immigration Rules and the corresponding Guidance mean that, for a couple to qualify as an "unmarried partner" for an Appendix FM application:
- The couple must have been in a relationship for at least two years;
- The relationship must have been "similar to a marriage or civil partnership" for at least two years (which seems to equate to a relationship having been "genuine and subsisting" for at least two years);
- That two-year period must have been completed before the date of the visa application;
- The relationship must still be genuine and subsisting at the date of application;
- The couple must be able to show an intention to live together permanently in the UK, as well as meet all of the other requirements for an Appendix FM application (e.g. financial requirement, accommodation requirement, language requirement).
This means that couples who have been in a relationship for less than two years will still not meet the definition of "unmarried partner", and will have to rely on alternative options – whether this is relying on "exceptional circumstances" or another type of visa, such as a student or business visa.
Further, unmarried partners, just like spouses and civil partners, will still need to prove that their relationship is "genuine and subsisting".
Unmarried couples will also have to prove, unlike spouses and civil partners, that their relationship has been genuine and subsisting for a two-year period (as "genuine and subsisting" seems to be the benchmark in the Guidance for a relationship to be "similar to marriage or civil partnership").
Caveat: "Living Together" Is No Longer Necessary, but Is Still Helpful
The "genuine and subsisting" requirement takes on even greater importance for unmarried partners than ever before, given that it feeds into the "partner" definition and the standalone "genuine and subsisting relationship" requirement that applies to all couples.
The Guidance contains a non-exhaustive list of evidence that could help prove that a relationship is "genuine and subsisting". This evidence is ranked in terms of persuasive value: from "Tier 1" evidence such as tenancy agreements and council tax bills, all the way down to less formal "Tier 3" evidence such as greetings cards and train tickets.
Looking at the top-ranked "Tier 1" evidence – such as tenancy agreements, council tax bills, utility bills, or car finance or insurance documentation which "evidences address as claimed" – it is clear that cohabitation is still viewed by the Home Office as one of the most persuasive ways of showing that a relationship is "genuine and subsisting".
In other words, even while cohabitation is no longer a requirement, let alone two years of cohabitation, it is still one of the best ways to persuade the Home Office that: (i) your relationship has been "similar to marriage or civil partnership" for two years, and (ii) your relationship is "genuine and subsisting" at the time of application. In addition, any evidence of cohabitation will likely lend more credibility to a couple's declaration of their future "intention to live together permanently in the UK".
That said, the removal of the explicit requirement for two years of "living together" is a welcome change for couples in committed relationships who do not or cannot live together for entirely explicable and legitimate reasons, and for couples who have plenty of evidence to show a "genuine and subsisting" relationship but struggle to gather two years' worth of cohabitation evidence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
