Changes in UK marriage and partner visa rules affecting overstayers

Published: 15/05/2008

A recent announcement by the Minister for Borders and Immigration, Mr Liam Byrne, will bring a fairer, simplified approach to the issues surrounding husband or wife UK visas, as addressed in DP3/96 and DP2/93, resulting in the withdrawal of these enforcement-related marriage policy guidances.

It had been identified that there were some limited situations whereby people currently unlawfully residing in the UK could have an unfair advantage over those acting legally under similar circumstances.  On 24th April 2008, Mr Byrne explained, “As part of our programme of reform in 2008 to tighten Britain’s border security, I am revoking two pieces of guidance which could have helped a handful of ‘overstayers’ – people here illegally in the UK – to obtain limited leave to stay in the UK as the spouse or partner of a British citizen rather than go home and apply for a marriage visa.”

The previous guidance for policy DP3/96 and DP2/93 was understood to have been able to be manipulated to give an unfair advantage to those facing an enforced removal from the UK who then applied to gain limited leave to stay in the UK as the partner or spouse of a UK visa holder. This was deemed to be unfair to those seeking a UK marriage visa before arriving in the UK and complying with immigration rules. It is believed that withdrawing such policies will enable marriage visa cases to be handled more easily, with a definable, fair process for those who seek to apply for limited leave to stay in the UK.

People employed in the UK immigration and visa application sector have long understood the Human Rights Act to be a welcome addition to the potential complications surrounding such policies and regulations. DP3/96 and DP2/93 was seen as a concessionary policy where a couple would not be separated by the removal of one partner if certain conditions were met. The simplification of this policy with the revoking of this potentially unfair advantage to those seeking to gain a visa via their husband, wife or partner, will help those legally making their applications and will allow the Home Office experts to refuse on clear grounds.

The key factor in the change of policy will remain true and the fact that an individual is married to or is the civil partner of a British citizen, or someone settled in the UK, will still be taken into consideration when removal from the UK is a potential outcome. However, this is now deemed relevant due to the Human Rights Act, rather than because of the previous guidance in policies DP3/96 and DP2/93. The aim is to ensure that applicants of UK visas are encouraged to apply using the clear channels of marriage visas, rather than the previously abused guidance by overstayers, with a simplified policy for handling marriage cases now in place. These ‘loopholes’ are now no longer available.

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