The Ukraine crisis has caused significant delays in Home Office visa processing and decision waiting times. Applications from outside the UK to settle in the UK as the spouse, partner, or family member of a British citizen or settled person, which usually take 12 weeks (3 months), are now taking up to 24 weeks (6 months) to be decided. Furthermore, the priority and super priority visa services for new family visa applications submitted outside the UK have been temporarily suspended while the Home Office deals with Ukraine Visa Scheme applications. This article has first appeared at RichmondBarrister.
As a result, many of our spouse visa, civil partner visa, unmarried partner visa, fiance visa, and proposed civil partner visa clients want to know if they can visit the UK (for example, to spend time with their fiancé(e) or spouse) while their partner visa is being processed, as long as they follow the terms of their visit visa and return to their country of nationality to collect their partner visa. This article provides an answer to that question.
The short answer to whether you can travel to the UK as a visitor while your entry clearance application as a partner is being processed is:
1. Visa nationals (those who need UK visit visa) are not permitted to visit the UK as visitors while their out-of-country applications are being processed;
2. Non-visa nationals (those who don’t need UK visit visa) may visit the UK as visitors while their out-of-country applications are being processed; however, doing so carries some risk.
The Home Office’s One Application at a Time Rule
The Home Office has a rule against multiple visa applications. This is set out in paragraph 34BB of the Immigration Rules:
34BB Except where one or more applications have been made under Appendix EU (see paragraph EU10 of Appendix EU):
(1) Where an applicant has an outstanding application for entry clearance or permission to stay which has not been decided (“the previous application”), any further application for entry clearance or permission to stay will be treated as an application to vary the previous application and only the most recent application will be considered.
Making an entry clearance application as a visitor amounts to withdrawing the partner visa application under this provision. Applying for a visit visa is considered a second application, and the partner visa application will be changed to a visit visa application.
This prevents visa nationals from visiting the UK while their partner visa is pending. It is not, however, a barrier for non-visa nationals. The reason for this is that non-visa nationals do not technically apply for entry clearance; instead, they apply for leave to enter, as explained below.
To meet the requirements of Immigration Rules Appendix V: Visitor, it is necessary to prove that you are a ‘genuine visitor’ as set out in V 4.2:
V 4.2. The applicant must satisfy the decision maker that they are a genuine visitor, which means the applicant:
(a) will leave the UK at the end of their visit; and
(b) will not live in the UK for extended periods through frequent or successive visits, or make the UK their main home;
A visit visa application may appear to be contradictory to an application for entry clearance as a partner. While the Appendix FM application expresses a desire to make the UK one’s home, the visit visa application expresses a desire not to make the UK one’s home.
A partner visa application requires an intention to settle in the UK. Meanwhile, a visit visa application requires that you intend to leave the UK. As a result, the intentions are arguably contradictory, and applying as a visitor provides an easy reason for the Home Office to deny your partner visa application.
However, the intentions of a visit visa and a partner visa do not always conflict. If you intend to visit the UK on this occasion and settle in the UK only later, you may meet the requirements of both applications in a non-contradictory manner.
In Oppong (visitor – length of stay) Ghana  UKUT 00431, the Upper Tribunal held that the essential issue is the intention held at the time of entry, and that a future intention to make an application does not contradict this:
“An essential requirement of entry clearance as a visitor is the intent to leave the United Kingdom at the end of the visit period.” The proposed stay in the United Kingdom is temporary, even if an applicant is likely to want to reapply very soon after the proposed visit has ended.”
Non-visa nationals should bring strong evidence of their intention to return home to the UK border (for example, evidence of booked return flights), which they can show to a border officer if questioned upon entry. Another application could have been detected on the border officer’s system. Evidence of ongoing ties to the home country, such as family or work ties, is also useful. In any case, the partner visa application will necessitate the applicant returning to their home country, as the applicant will be required to submit their passport to the visa application centre once a decision is made.
A border officer, on the other hand, may reject your argument that the intentions can be reconciled, particularly if you provide no evidence of ties to your home country. They may view your pending partner visa application as evidence that you do not intend to leave the country at the end of your visit, for example, if your partner visa application is denied. As a result, there is a chance that you will be turned away at the border, wasting the cost of your flights and any other trip expenses. Furthermore, your spouse visa application may be denied if you have demonstrated a contrary intention not to settle in the UK.
Do you want to instruct me? If you are looking for personal legal advice or help with your case, we have three different services available for different budgets:
1. Ask us anything on video link or telephone legal advice in 30 min sessions for £120.
2. Application checking service for £450 if you have prepared your application yourself but want it checking for your peace of mind
3. Full legal representation from £1,250 where we run your case for you.
We are Queen’s Park Solicitors. I am a Solicitor (Lawyer) based in London, UK. My name is Atty. Lindoven Magsino, BSc, MBA, GDL, LLM, Ph.D. (candidate). We are based at Suite 4, Stewart House, 56 Longbridge Road, Barking, Essex IG11 8RT, United Kingdom | Telephone: 02036437508 | Fax: 02033931725 | Email: firstname.lastname@example.org | Regulated by the Solicitors Regulatory Authority (SRA) 566513. Visit us at http://www.queensparksolicitors.co.uk.
DISCLAIMER: All information posted is merely for educational and informational purposes. It is not intended as a substitute for a professional advise. Should you decide to act upon on the information on this website, you do so at your own risk.