UK spouse and partner visa application process after Brexit

11 July 2016

Brexit is a huge topic of conversation in most households in Britain right now. Whilst Leave campaigners are rejoicing, Remain campaigners and those EEA citizens living in the UK that were unable to vote are feeling sad about the split, which many anticipate will be a very messy divorce. Interest in UK immigration and British citizenship has increased since the Brexit decision was announced, and many visa holders and prospective applicants are asking questions such as what will happen if I hold a UK settlement fiancee, partner or spouse visa, or an EEA family permit? Will I still be able to apply for a visa to remain in the UK if I do not have one already? The answers to these questions are as yet unclear, and will remain unclear until article 50 is invoked and the UK officially decides to leave the EU. However, it would be reasonable to assume that living and working in the UK is likely to be significantly more difficult for EEA nationals and their family members after the leave vote, and is likely to involve adhering to new restrictions and barriers: these barriers are likely to be financially costly, and take the form of permits, visas or other requirements.

Much of the ways in which Brexit will affect UK visa applicants will depend on whether or not Britain wishes to remain a part of the EEA common market. It is expected that if Britain wishes to continue trading with the EU then a commitment to continue the freedom of movement for the EEA nationals will be part of this negotiation: in that instance much of the visa application process will remain the same. This would be good news for EEA citizens and their families living, or wishing to settle in the UK on a permanent basis. However, if Britain makes the decision to leave the common market in order to fulfil their promise to regain control of the borders then the visa application process is likely to look very different leaving EEA nationals in a situation where they will need to apply for UK entry visas to remain in the UK in much the same way as non-EEA citizens currently do.

UK settlement visas for partners and spouses of British Citizens

The good news is that non-EEA nationals who are applying for a UK de facto partner, fiancee or spousal visa are the least likely to experience much change to the application process as a result of the Brexit decision. These types of visas are issued to foreign nationals who have a partner or spouse that is a British citizen or has already achieved permanent settled status in the UK (indefinite leave to remain or ILR), so the anticipation is that there will be little to no change in the way that these applications are handled by UK Visas and Immigration (UKVI). UK settlement visas are issued under UK immigration Rules and there are currently no legislative proposals to change the existing policy.

Surinder Singh route

Spouses of British citizens living in other EEA countries who are hoping to take advantage of the Surinder Singh route to settle in the UK are likely to be affected. The Surinder Singh route to entry appeals to couples that do not meet the financial requirement of their settlement visa application, and allows the sponsoring British citizen to move to another EU country before bringing their non-EEA spouse to live with them in the UK under the EEA family permit scheme circumnavigating the need to apply for a traditional UK spouse visa under UK immigration Rules. This route is expected to be one of the first to close.

EEA family permit

Most of the media attention surrounding the rights of EEA nationals to live in the UK has focused on those individuals applying for EEA family permits and residence cards to confirm their right to live and work in the UK. This is where the results of the Brexit referendum are most likely to change the application process. EEA nationals who have been living in the UK for less than five years are expected to be asked to apply for the relevant (points based or family) visa in order to remain in the country, whilst future EEA applicants hoping to live in the country would have to apply for UK entry clearance in the same way as non-EEA citizens are currently required to. The group that this will affect the most are EEA citizens wishing to move to the UK, along with their non-EEA partners. The process is likely to be more time consuming, complicated and expensive following the process of leaving the EU. It is likely that EEA nationals wishing to settle in the UK permanently will have to meet minimum income requirements, adhere to point based application process and jump through a wide variety of new hoops.

It is likely that EEA citizens residing in the UK currently will not be thrown out of the country, but instead will be asked to apply for a visa to stay – just as non-EEA citizens would be. Those visa applicants who do not meet the requirements may not be able to stay. Those who have obtained permanent status through living in the UK for five non-interrupted years may apply for a Home Office document certifying permanent residence. Although not mandatory, as the UK visa application process becomes more ambiguous and complicated as a result of the Brexit, it is advisable to apply for permanent residence as soon as legally possible. This document confirms the holder’s right to live and work in the UK on an indefinite basis.

It is unlikely that we will see immediate changes to the UK visa application process, and until article 50 is invoked and the discussions between the British government and Brussels surrounding how this will change their relationship begin, we cannot really predict exactly what the results will be. It could well be that the UK wishes to remain part of the EEA common market, in which case the free movement of people is likely to be a non-negotiable part of that agreement. However, until article 50 is invoked, it is hard to predict what the result of this unprecedented process is likely to be.

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