CHAPTER 15 SECTION 2A – PERSONS SEEKING SETTLEMENT: HM FORCES

 

1

Introduction

2.

Gurkhas

2.1

Settlement pre/on entry

2.2

On “completion of engagement”

2.3

Settlement after entry

2.4

Applications lodged in advance

2.5

Medical discharge

2.6

Verifying details of Service

3

Dependants of Gurkhas

4.

Grants and Refusals

4.1

Grant of Applications

4.2

Refusal of Applications

4.3

CID codes

5

Appeal rights

6.

Foreign and commonwealth Nationals (Non – Gurkhas)

6.1

Settlement pre/on entry

6.2

On “completion of engagement”

6.3

Settlement after entry

6.4

Applications lodged in advance

6.5

Medical discharge

7.

Dependants of Foreign and commonwealth nationals (Non-Gurkhas)

8.

Grants and Refusals

8.1

Grant of Applications

8.2

Refusal of Applications

8.3

CID codes

9.

Appeal rights

10.

Medical discharge cases

10.1

Medical grading codes

10.2

MOD disciplinary procedures

10.3

Evidence

10.4

Consideration

10.5

Medical discharge due to injury sustained in operations

10.6

Medical discharge due to an injury or medical condition attributable to service in HMAF

10.7

Discharge due to injury or medical condition sustained during initial training or due to a medical condition not attributable to HMAF service

10.8

Leave outside the immigration rules

10.9

Dependants

11.

Dependants of Foreign and Commonwealth nationals (including Gurkhas)

12.

Spouses, Civil partners, unmarried and same sex partners

12.1

Polygamous marriages

12.2

CID codes

12.3

Widows, widowers and bereaved civil partners, unmarried and same sex partners

13.

Children

13.1

CID codes

13.2

Dependants over the age of 18

13.3

The importance for dependants of observing the stated purpose of their settlement visa

13.4

Dependants of HM Forces members who naturalise as a British Citizen whilst still serving

13.5

Orphans

ANNEX A

Discretionary arrangements for former Gurkhas discharged before 1 July 1997

ANNEX B

Indicative letter to send to applicant whose application has been considered and granted in principle

ANNEX C

Medical discharge pro-forma for completion by MOD discharging unit or SPVA (if discharged)

ANNEX D

Table to assist consideration of HMAF “medically discharged” cases

ANNEX E

Authorisation Form to be completed by a former Gurkha seeking indefinite leave

ANNEX F

Information request to Gurkha records office, Pokhara

 

 

1.             INTRODUCTION

 

 

This section deals with applications from Gurkhas and foreign and Commonwealth nationals who seek settlement in the UK on discharge from HM Forces. It also explains the circumstances under which their dependants may apply for settlement.

 

On 25 October 2004 the Immigration Rules were amended to provide for all those with at least 4 years service with HM Armed Forces to apply for settlement in the UK after discharge.  Paragraphs 276E to 276Q of the Immigration Rules refers.

 

Paragraphs 276E-K of the Immigration Rules relate to Gurkhas, who will continue to be recruited in Nepal; and paragraphs 276L-Q of the Immigration Rules relate to foreign and Commonwealth nationals who are normally recruited and discharged in the UK. 

 

The Immigration Rules make provision in both parts for applications for settlement to be made either from overseas or from within the UK.

 

2.         GURKHAS

 

For the purposes of the Immigration Rules (Paragraphs 276E-K) a Gurkha is a citizen or national of Nepal who has served in the Brigade of Gurkhas of the British Army under Brigade of Gurkhas’ terms and conditions of service.

 

On 30 September 2004 the Prime Minister and Home Secretary announced a change of policy in respect of Gurkhas.  Gurkhas discharged from the British Army in Nepal, on or after 1 July 1997 and with at least 4 years service with the British Army would be able to apply for settlement in the UK.

 

The 1 July 1997 cut-off date reflected when the Brigade of Gurkhas moved its headquarters from Hong Kong to the UK, and Gurkhas discharged on or after that date would therefore have had more opportunity to develop close physical ties with the UK.

 

NB See Annex A for discretionary arrangements for former Gurkhas discharged before 1 July 1997.

 

2.1      Settlement pre/on entry

 

The requirements for indefinite leave to enter (paragraph 276F-G) as a Gurkha discharged from the British Army are:

 

(i) the applicant has completed at least four years service as a Gurkha with the British Army; and

 

(ii) was discharged from the British Army in Nepal on completion of engagement on or after 1 July 1997. The requirement to have been discharged in Nepal is to be waived until the relevant paragraph in the Rules is amended; and

 

(iii) was not discharged from the British Army more than 2 years prior to the date on which the application is made; and

 

(iv) holds a valid United Kingdom entry clearance for entry in this capacity.

 

If requirements (i), (ii) and (iii) above are met entry clearance for settlement may be issued, and if that entry clearance is presented to the Immigration Officer on arrival the applicant will be admitted to the UK for settlement.

 

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2.2      Definition of “on completion of engagement”. 

 

In (ii) above “on completion of engagement” means that a person was discharged from the armed forces in the normal course of events, after completing the agreed period of service and has been issued with a Certificate of Service.

 

2.3      Settlement after entry

 

The requirements for indefinite leave to remain (settlement) (paragraphs 276I-J) as a Gurkha discharged from the British Army are that:

 

(i) the applicant has completed at least four years service as a Gurkha with the British Army; and

 

(ii) was discharged from the British Army on completion of engagement on or after 1 July 1997. The requirement to have been discharged in Nepal is to be waived until the relevant paragraph in the Rules is amended; and

 

(iii) was not discharged from the British Army more than 2 years prior to the date on which the application is made; and

 

(iv) on the date of application has leave to enter or remain in the United Kingdom.

 

If all of the above requirements are met settlement may be granted. 

 

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2.4      Applications lodged in advance

 

To assist HM Armed Forces personnel in making the transition to civilian life, settlement applications may be lodged up to 10 weeks before the discharge date, although settlement cannot be granted until after exemption from control has ceased upon their discharge. 

 

These applications should be examined as soon as they are received and any additional enquiries made in good time to ensure that the decision to grant or refuse can be implemented the day or day after discharge.

 

Where a decision in principle is made to grant settlement, an indicative letter based on the proforma at Annex B should be sent to the applicant to assist them in making appropriate arrangements for employment after discharge and for liaising with the relevant authorities for housing, healthcare and benefits.

2.5      Medical discharge

 

In cases involving discharge from the Brigade of Gurkhas on medical grounds after 1 July 1997, please refer to the guidance at section 10 below.

 

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Note: section 10 and Annex D provide guidance for dealing with settlement applications from medically discharged Commonwealth & foreign nationals (including ex-Gurkhas medically discharged on or after 1 July 1997)

 

2.6    Verifying details of service

 

If the applicant’s original Certificate of Service (also called Army Form Book 108, Red Book or ‘Lal’ Book) has not been submitted - or it has been submitted but verification of an applicant’s claim to the qualifying period of service or other information is required (for example, in relation to an award of a MoD disability pension or to find out more about why somebody’s service was terminated prematurely) - checks may be made with reference to information provided directly by the MoD.

 

            Checks may be carried out with the MoD in the UK or by reference to Records Office at the Brigade of Gurkhas main Recruiting Depot in Pokhara, Nepal. The authorisation form at Annex E & F may be adapted for this but in most cases it should not be necessary to use this means to obtain this information. Where this is considered necessary, a faxed copy of the service record showing the length of service and date of discharge (including any other relevant information required) should be obtained and attached to the applicant’s file.

 

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3. DEPENDANTS OF GURKHAS

 

For guidance on dealing with applications from dependants of Gurkhas, please refer to sections 11-13 below.

 

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4.         GRANTS AND REFUSALS

 

4.1     Grant of Applications

 

Providing that an application meets the requirements of the rules or the requirements of the discretionary policy for Gurkhas discharged before 1 July 1997, settlement should be granted and documents processed in the normal way.

 

4.2      Refusal of Applications

 

If an applicant cannot satisfy the requirements of paragraph 276F  of the Immigration Rules when applying for leave to enter, or paragraph 276I of the Rules when applying for leave to remain as a Gurkha discharged from the British Army, and the exercise of discretion is not considered appropriate, settlement should be refused.

 

Suggested refusal wording:

 

“You have applied for settlement in the United Kingdom as a Gurkha discharged from the British Army but your application has been refused.

 

In view of the fact that you have not completed at least four years service as a Gurkha with the British Army; [I am/the Secretary of State is] not satisfied that you meet the requirements of paragraph [276F/276I] of the Immigration Rules."

Paragraph reference 276F(i) or 276I(i)

 

In view of the fact that you were discharged from the British Army more than 2 years prior to the date on which the application is made; [I am/the Secretary of State is] not satisfied that you meet the requirements of paragraph [276F/276I] of the Immigration Rules.”

Paragraph reference 276F(iii) or 276I(iii)

 

In view of the fact that on the date of application you did not have leave to enter or remain in the United Kingdom, [I am/the Secretary of State is] not satisfied that you meet the requirements of paragraph 276I of the Immigration Rules.”

Paragraph reference 276I(iv)

 

 

4.3    Case Information Database codes

 

The following stats categories should be used: 

 

Grant:   7DA

Refusal:   X8

 

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5.         APPEAL RIGHTS

 

For information on rights of appeal please refer to IDI Chapter 12.

 

 

6.         Foreign & Commonwealth Nationals (non-GURKHAS)

 

Paragraphs 276L-Q of the Immigration Rules replace what was previously known as the “Armed Forces Concession” under which those without right of abode could apply for settlement on discharge in the UK from the Armed Forces, on the basis of 4 years approved employment.

 

6.1      Settlement pre/on entry

 

The requirements for indefinite leave to enter (paragraphs 276L-M) as a foreign or Commonwealth citizen discharged from HM Forces are:

 

(i) the applicant has completed at least four years service with HM Forces; and

 

(ii) was discharged from HM Forces on completion of engagement; and

 

(iii) was not discharged from HM Forces more than 2 years prior to the date on which the application is made; and

 

(iv) holds a valid United Kingdom entry clearance for entry in this capacity.

 

If requirements (i) (ii) and (iii) are met entry clearance for settlement may be issued, and if the entry clearance is presented to the Immigration Officer on arrival the applicant will be admitted to the UK for settlement.

 

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6.2      Definition of “on completion of engagement”

 

In (ii) above “on completion of engagement” means that a person was discharged from the Armed Forces in the normal course of events, after completing the agreed period of service and has been issued with a Certificate of Service.

 

6.3      Settlement after entry

 

The requirements for indefinite leave to remain (paragraphs 276O-P) as a foreign or Commonwealth citizen discharged from HM Forces are:

 

(i) the applicant has completed at least four years service with HM Forces; and

 

(ii) was discharged from HM Forces on completion of engagement; and

 

(iii) was not discharged from HM Forces more than 2 years prior to the date on which the application is made; and

 

(iv) on the date of application has leave to enter or remain in the United Kingdom.

 

If all the above requirements are met settlement may be granted.

 

6.4      Applications lodged in advance

 

To assist HM Forces personnel in making the transition to civilian life, settlement applications may be lodged up to 10 weeks before the discharge date, although settlement cannot be granted until after exemption from control has ceased upon their discharge.  These applications should be examined promptly as soon as they are received and any additional enquiries made in good time to ensure that the decision to grant/refuse can be implemented the day or day after discharge, as appropriate.

 

Where a decision in principle is made to grant settlement, an indicative letter based on the proforma at Annex B should be sent to the applicant to assist them in making appropriate arrangements for employment after discharge and for liaising with the relevant authorities for housing, healthcare and benefits.

 

6.5      Medical discharge

 

In cases involving discharge of foreign and Commonwealth service personnel on medical grounds please refer to the guidance at section 10 below.

 

 

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7          DEPENDANTS OF FOREIGN & COMMONWEALTH NATIONALS (NON-GURKHAS)

 

For guidance on dealing with applications from dependants of foreign and Commonwealth service personnel please refer to sections 11-13 below.

 

8.         GRANTS AND REFUSALS

 

8.1   Grant of Applications

 

Providing that an application meets the requirements of the rules, settlement should be granted and documents processed in the normal way.

 

8.2   Refusal of Applications

 

Where an applicant does not satisfy the requirements of:

 

§       paragraph 276L of the Rules if applying for leave to enter;, or

§       paragraph 276O of the Rules if applying for leave to remain, as a foreign or Commonwealth citizen discharged from HM Forces; or

§       other relevant Immigration Rules - e.g. paragraph 281 (spouses and civil partners), paragraph 297 (children), paragraph 317 (parent, grandparent, other dependent relative); 

 

and the exercise of discretion is not appropriate, settlement should be refused. The refusal text should refer to any consideration given to the application both under and outside the Immigration Rules.

 

Suggested refusal wording:

 

“You have applied for settlement in the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces but your application has been refused.

 

In view of the fact that you have not completed at least four years service with HM Forces, [I am/the Secretary of State is] not satisfied that you meet the requirements of paragraph [276L/276O] of the Immigration Rules.”

Paragraph reference 276L(i) or 276O(i)

 

In view of the fact that you were not discharged from HM Forces on completion of engagement, [I am/the Secretary of State is] not satisfied that you meet the requirements of paragraph [276L/276O] of the Immigration Rules.”

Paragraph reference 276L(ii) or 276(O)(ii)

 

In view of the fact that you were discharged from HM Forces more than 2 years prior to the date on which the application is made, [I am/the Secretary of State is] not satisfied that you meet the requirements of paragraph [276L/276O] of the Immigration Rules.”

Paragraph reference 276L(iii) or 276O(iii)

 

 

In view of the fact that on the date of application you did not have leave to enter or remain in the United Kingdom, [I am/the Secretary of State is] not satisfied that you meet the requirements of paragraph 276O of the Immigration Rules.”

Paragraph reference 276O(iv)

 

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8.3      Case Information Database codes

 

The following stats categories should be used: 

 

Grant:   7DA

Refusal:   X8

 

9.         APPEAL RIGHTS

 

For information on rights of appeal please refer to IDI Chapter 12.

 

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10.      MEDICAL DISCHARGE CASES

 

This section provides guidance on the consideration to be given to settlement applications from medically discharged  foreign and Commonwealth nationals, including ex-Gurkhas medically discharged on or after 1 July 1997. It explains the circumstances in which the normal requirement in the Immigration Rules to have completed four years’ service may be waived.

 

10.1    Medical grading codes

 

The following medical grading codes are used by the MoD when considering discharging personnel on medical grounds:

 

P3 - fit for light/restrictive duties;  

P4 - pregnancy maternity;

P7 - fit for limited/restricted duties in UK only;

P8 - medically unfit for any form of military service;

P0 – unfit for duty but under medical care [Not used by RN].

 

Individuals in the Army and RAF may be medically discharged under one the following Queen’s Regulations:

 

Army

 

QR 9.381 – ‘Defect in enlistment procedure’ – where a pre-existing medical condition and/or pre-disposition to developing a certain condition only becomes apparent after enlistment.  

 

QR 9.385 - for re-allocation or discharge. Possible re-enlistment after 6 months. Trainees must maintain entry standards.

 

QR 9.386 - unfit for any form of service. Discharge - possible re-enlistment after 6 months.

 

QR 9.387 - permanently unfit for service – possible re-enlistment only after 5 years.

 

RAF

 

QR 2905(4) Officers & QR 607(15)(a)(b) Ground Trades and NCA: Invaliding:  Permanently below the medical standard required to conduct the full duties of their specialisation or unlikely to reach that standard with a reasonable time. 

 

QR 2905(3) Officers and QR 607(22)(d)(ii): Medical – Non Invaliding:  Permanently below the medical standard required to conduct the full duties of their specialisation for reasons within their control or where the condition/disability is unlikely to be lasting.

 

QR 2906(3) Officers and QR 607(15)(b): Election to Leave: Permanently below the medical standard required to conduct the full duties of their specialisation, unlikely to reach that standard within a reasonable time, declined an offer of suitable alternative employment in the RAF or feel their career prospects are unacceptability affected through circumstances beyond their control.

 

QR 2905(4) Officers and QR 607(15)(b) NCA: Aircrew Right to Elect Invaliding:  Aircrew who cease to be appointable to flying duties because of a permanently reduced MES below A2, may as a once only option to elect to be invalided as an alternative to retention.   

 

Royal Navy/Royal Marines

 

In the Naval Service, personnel are discharged in accordance with the regulations contained in the Board of Reference (BR) 1991 – Instructions for the Royal Naval Medical Service – Chapter 18 – Medical Boards. The circumstances of RN/RM medical discharge cases should be evident from the applicant’s F Med 133 and F Med 23 medical reports.  

 

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10.2      MoD disciplinary procedures  

 

Mod disciplinary procedures take precedence over military discharge procedures, so if an applicant has been medically discharged the UK Border Agency may generally accept that no personal or disciplinary factors are involved.  Any cases where, for example, there is evidence of criminal activity, will need to be investigated thoroughly and decided on a case-by-case basis.

 

HM Armed Forces personnel are normally given 110 – 130 days notice of their medical discharge date. To assist the MoD and the medical dischargee in making the transition from service to civilian life as seamless as possible, applications for settlement from medical dischargees may be lodged up to 3 months before the discharge date. Although settlement cannot be granted until after discharge has taken place (due to exemption from control), these applications should be examined promptly as soon as they are received and any additional enquiries made in good time to ensure that the decision to grant/refuse can be implemented on the day or day after discharge.

 

Where a decision in principle is made to grant settlement, an indicative letter based on the proforma at Annex B should be sent to the applicant to confirm to OGDs, local authorities and prospective employers that once settlement is granted, there will be no restriction to them accessing those public funds for which they may be eligible or from seeking employment.

 

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10.3    Evidence

 

If they have not already done so, applicants should be asked to submit their F Med 133  their F Med 19 (Army & RAF) – Medical Board Proceedings or F Med 23 (RN) – Medical Board Proceedings report as official MoD evidence of the circumstances and nature of their injury or illness. These should provide confirmation that discharge was as a direct result of injury sustained in an operational theatre or an illness that has been deemed attributable to their service in HM Armed Forces.

 

If the evidence supplied by the individual is inconclusive, the UK Border Agency should contact the individual’s Unit if they are still serving or the Service Personnel and Veterans Agency (SPVA) if they have been discharged for further information using the details contained in Annex C.

 

The contact details for the SPVA are:

 

Ann Morton,

SPVA,

Room 6205, Norcross,

Blackpool, FY5 3WP

Tel: 01253 332862

 

10.4    Consideration

 

The guidance below should be read in conjunction with the indicative table at Annex D.

 

All decisions should be reviewed and approved by a senior caseworker.

 

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10.5    Medical discharge due to injury sustained on operations

 

Where a foreign or Commonwealth member of HM Armed Forces is medically discharged as a direct result of injury sustained during operations, the requirement for them to have completed four years’ service in order to qualify for settlement should normally be waived.

 

Any cases of discharged servicemen or women in these circumstances that have previously been refused settlement will be reviewed in line with the above guidance where these are brought to the UK Border Agency’s attention. The requirement to have been discharged no more than 2 years prior to the date of application would also be waived in re-consideration cases.

 

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10.6        Medical discharge due to an injury or medical condition attributable to service in HM Armed Forces. 

 

a.       Cases where the exercise of discretion may  be appropriate would include where discharge of a HM Armed Forces member who has completed initial training results directly from an injury sustained on duty but outside an operational theatre (e.g. during pre-deployment  training ) or from a medical condition attributable to their training or service. In such cases, it may be appropriate to exercise discretion to waive the 4 years’ service requirement under the settlement rules, especially where the injury is of a serious nature, the long-term prognosis is poor or where there will be an ongoing need for medical treatment not available in the individual’s country of origin.

 

b.       Where the injury or medical condition leading to discharge is attributable to service but of a relatively minor nature or the period of service completed is relatively short, waiving the 4 years’ service requirement may not be appropriate.

 

All ‘non-operational, but attributable’ cases should be considered sympathetically on their individual merits with reference to the indicative table at Annex D. Where cases lie somewhere in between the situations described in (a). and (b). above, caseworkers should use their judgment, giving weight to the following factors:

 

- the seriousness of the injury or condition;

- the need for any further medical treatment in the UK and the availability of medical

  treatment in the individual’s county of origin;

- the prognosis for recovery including whether the injury or illness will affect their ability to

  support themselves in their country of origin;

- the length of time already served at the point of discharge.

 

Where a substantial part of the required minimum four years’ service has been served prior to discharge, it would normally be appropriate for discretion to be exercised to grant settlement in cases, even where the injury or medical condition involved is less serious.

 

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10.7        Discharge due to injury or medical condition sustained during initial training or due to a medical condition not attributable to HM Armed Forces service   

 

Where discharge results from injury sustained during initial training or is due to a medical condition not attributable to service in HM Armed Forces, it would not normally be appropriate to waive the requirement to have completed four years’ service prior to discharge for the purposes of considering an application for settlement.

 

However, where a substantial part of the minimum four years’ service required has been served prior to discharge, discretion may be exercised to grant settlement. Please refer to indicative table at Annex D.

 

This would also apply to an application from an individual medically discharged as a result of a pre-existing medical condition and/or if their pre-disposition to developing a certain condition only becomes apparent after enlistment.

 

10.8       Leave outside the immigration rules

 

Where the decision is made to refuse settlement but further medical treatment or a recovery period  will be required before the applicant is able to return to their country of origin, a grant of Leave Outside the Rules (on code 1A - with permission to work and claim benefits) may be appropriate. The grant should be only as long as judged necessary and should not convey any expectation of further leave or eventual settlement. See IDI Ch.1, section 14 for more information on LOTR.

 

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10.9     Dependants

 

Where settlement or leave outside the rules is granted, those previously treated as a dependent spouse, civil partner, unmarried partner, same-sex partner or child will normally qualify for leave in line.

 

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11.      DEPENDANTS OF FOREIGN & COMMONWEALTH NATIONALS (INCLUDING

           GURKHAS)

 

Applications for settlement from dependants of former foreign and Commonwealth HM Forces personnel (including discharged Gurkhas) are to be considered in line with an application for settlement submitted by the former HM Forces member.

 

On 1 January 2005 two new Rules took effect, which enable the spouse, civil partner or child dependants of those settled or seeking settlement under the HM Forces rule to apply for settlement in line. Further amendments to the Rules – effective from 31 March 2009 – extended this right to unmarried and same-sex partners.

 

New provisions were also introduced, from 31 March 2009, enabling spouses, civil partners, unmarried partners, same-sex partners and children of a member of HM Forces to apply for settlement if their spouse, civil partner, unmarried partner, same-sex partner or parent has completed at least 5 years’ continuous service. These provisions are set out in:

 

·     Paragraphs 276R to 276W - spouses, civil partners, unmarried and same-sex partners of persons settled or seeking settlement in the United Kingdom in accordance with paragraphs 276E to 276Q (HM forces rules) or of members of HM forces who are exempt from immigration control under section 8(4)(a) of the Immigration Act 1971 and have at least 5 years’ continuous service– please see paragraph 12 below.

 

·     Paragraphs 276X to 276AC - children of a parent, parents or a relative settled or seeking settlement in the United Kingdom under paragraphs 276E to 276Q (HM forces rules) or of members of HM forces who are exempt from immigration control under section 8(4)(a) of the Immigration Act 1971 and have at least 5 years’ continuous service – please see paragraph 13 below.

 

In addition to consideration under these provisions, applications for settlement from dependants should also be considered under the relevant provisions of the Immigration Rules - e.g. paragraph 281 (spouses and civil partners), paragraph 297 (children), paragraph 317 (parent, grandparent, other dependent relative) - before being considered under the discretionary arrangements set out below.

 

 

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12.      SPOUSES, CIVIL PARTNERS, UNMARRIED AND SAME-SEX PARTNERS

 

To qualify for indefinite leave to enter or indefinite leave to remain in the UK as the spouse, civil partner, unmarried or same-sex partner of a person settled or seeking settlement under the HM Forces rule or of a serving member of HM Forces who is exempt from immigration control under section 8(4)(a) of the Immigration Act 1971 and has at least 5 years’ continuous service, the following requirements must be met:

 

·     the applicant must be married to, or the civil partner, unmarried or same-sex partner of a person present and settled in the UK or who is being admitted for settlement or being granted settlement on the same occasion under the HM Forces rule;

·     the parties to the marriage, civil partnership or relationship akin to marriage or civil partnership must have met;

·     the marriage, civil partnership or relationship akin to marriage or civil partnership must have been formed at least 2 years ago;

·     each of the parties must intend to live permanently with the other as their spouse, civil partner, unmarried or same-sex partner and the marriage, civil partnership or relationship akin to marriage or civil partnership must be subsisting;

·     if seeking indefinite leave to enter, a valid entry clearance for entry in this capacity must be held;

·     if seeking indefinite leave to remain, the applicant has leave to enter or remain in the UK.

 

Caseworkers should note the lack of any maintenance and accommodation requirements.

 

The requirement that the parties have been married, in a civil partnership or relationship akin to marriage or civil partnership for at least 2 years is consistent with the requirements of the general immigration rules for spouse/civil partners and PBS dependants applications. Chapter 8, Section 9 Annex Z provides further guidance for assessing unmarried and same-sex relationships, including what might be required as evidential proof. If the marriage, civil partnership or relationship akin to marriage or civil partnership has subsisted for less than 2 years the spouse, civil partner, unmarried or same-sex partner should be:

 

·      (where the spouse has been granted settlement) granted a period of leave to enter or remain up to a maximum of 2 years on Code 1 in  accordance with the requirements for spouses, civil partners, unmarried or same-sex partners of persons present and settled in the United Kingdom or being admitted on the same occasion for settlement (paragraphs 281-289 of the Immigration Rules); or

·      (where the spouse is still serving) granted leave up to a maximum of 2 years on Code 1 in accordance with the requirements for a dependant of an exempt armed forces member (paragraphs 276AD-276AF)

 

The applicant should be advised that they may apply not earlier than one month before the end of the probationary period, for indefinite leave to remain in the United Kingdom on the basis of the still subsisting marriage, civil partnership or relationship akin to marriage or civil partnership.   

 

For definitions of “present and settled” in the UK, and “intention to live permanently with the other” please refer to Chapter 8 Section 1.

 

NOTE: See paragraph 13.3 about the importance of dependants observing the stated purpose of their settlement visa.

 

In cases where there is reason to doubt that the marriage is genuine please refer to Chapter 8 Section 1 ANNEX A.

 

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12.1    Polygamous marriages

 

Only one wife may be permitted entry to the United Kingdom under the provisions of the immigration rules for spouses. See chapter 8, Section 1, Annex C Polygamous and potentially polygamous marriages.

 

12.2    CID Codes

 

For statistical codes please see Chapter 8 Section 1 paragraphs 4.9 and 4.11.

 

For examples of refusal formulae and CID refusal codes please refer to Chapter 8 Section 1 Annex G.

 

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12.3    Widows, widowers and bereaved civil partners, unmarried and same-sex partners

 

Where an application for settlement in the UK is received from the widow, widower, civil partner, unmarried or same-sex partner of a deceased foreign or Commonwealth HM Forces member (including Gurkhas) and where their spouse or partner’s death occurred in connection with operational service, discretion will normally be exercised to grant settlement. This would include foreign and Commonwealth HM Forces members (including Gurkhas) killed, for example, during hazardous pre-combat exercises and manoeuvres or travelling to, from or around the combat zone, in addition to those killed during combat itself. Any other spouse or partner of a deceased serving or former member of HM forces would not normally meet the criteria for settlement in the UK under this immigration discretion and would therefore need to qualify under a different provision of the Immigration Rules.

 

In exceptional circumstances discretion may be exercised in individual cases where the spouse’s death was not in connection with operational service but there are strong reasons why settlement in the UK is appropriate. In assessing whether or not this is appropriate consideration should be given to the presence of the following factors: