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Spouse entry clearance and leave to remain; the validity of marriage

This blog forms part of a series on spouse visas. Spouse or partner visas tend to form a large part of many immigration representative’s caseloads. This series of comprehensive guides, therefore, looks at all the requirements and how you might meet them and also looks at common errors made by practitioners and self-represented applicants.

This blog looks at the marriage itself and whether it will be accepted under the Immigration Rules as they relate to spouses.

What does the law require?

Appendix FM of the Immigration Rules contains eligibility requirements which must be met by a person seeking entry as a spouse or partner in the UK. One of these eligibility requirements is:

E-ECP.2.7. If the applicant and partner are married or in a civil partnership, it must be a valid marriage or civil partnership, as specified.

The Home Office will usually accept a marriage that is taken place overseas as valid if:

  • It is a type of marriage or civil partnership that is recognised in the country in which it was conducted; and
  • The civil partnership or marriage was conducted in accordance with the law of the country in which it took place; and
  • There is nothing in respect of a person’s country of domicile at the time of the marriage which stops the marriage or civil partnership been recognised by that country; and
  • Any previous marriages or civil partnerships have broken down permanently.

What are the rules regarding underage marriage?

The guidance also contains information on when ‘underage’ marriages will be recognised by the UKVI. In some countries, such as South Africa and certain US states, it is lawful for a marriage to take place between people under the age of 16.  Although a person will not be able to apply at that time for entry clearance as a spouse to the UK, as they must be age 18 or over to make a spousal application, once the applicant and sponsor are both 18 years old or above, they would be able to rely on that marriage that was conducted when they were under the age of 16, provided it is a lawful marriage.

Are proxy marriages valid?

Another common circumstance that immigration practitioners come across is proxy marriages. In CB(Brazil) (validity of marriage: proxy marriage) [2008] UAIT 00080 guidance was given on when proxy marriages should be accepted as valid marriages. In order that the marriage is accepted, it must satisfy the law in the country in which it took place; the two parties must have had the capacity to marry under the law of each of their domiciles and evidence of the marriage must be provided. In respect of proxy marriages, it may be that additional documents are required by the entry clearance officer to establish that a proxy marriage has taken place. This might include a certificate of marriage a transcript of the ceremony, affidavit of the person that represented the spouse, and so on.

This gives an idea of the common problems that you might come across in respect of the validity of marriage under Appendix FM.

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