Briefing: Does Your Relationship satisfy the Home Office “Genuine and Subsisting” test? by Charlotte Rubin

It is no secret that many couples and immigration practitioners have long been growing frustrated with the requirements to evidence family relationships when applying for a family visa in the UK. Every year, a significant amount of family applications are rejected on the basis of the applicant not providing the adequate documents to evidence relationship requirements.

For Spouse visas, the Home Office guidance states, “an applicant and their partner must provide evidence that they are in a genuine and subsisting relationship.” This is to avoid marriages of convenience or “sham marriages.” But what is a “genuine and subsisting” relationship and worse yet, how does one prove it?

Appendix FM-SE of the immigration rules deals with evidencing all the requirements set out for family visas in the UK. For married couples, it specifies that a marriage certificate is a mandatory requirement to prove the marriage. This is confirmed in the the Home Office guidance on family relationships for partners, divorce and civil partnerships. Unfortunately, neither the Appendix or the guidance specify what evidence is needed to satisfy the “genuine relationship” test.

Since the criterium is vaguely worded, and there is little clear guidance on the subject, it is only logical that applicants often do not realise how much evidence they are expected to present to fulfil the requirement. As a general rule, it is up to the person filling in the application form and, in this case, relying on the existence of a relationship, to prove any assertion made about it. The caseworker who looks at the application will not do their own investigatory work on an applicant’s behalf.

Unsurprisingly, when spouse visa applications get refused, lack of a “genuine and subsisting relationship” is therefore often cited as the reason for refusal. Almost always, the refusal does not mean that the relationship is not genuine, but rather that the applicant failed to give adequate or enough information (in the view of the deciding caseworker) to prove that it was genuine. This is a subjective factor, which depends on the caseworker reading your application. That is why the general advice is to prepare all your immigration applications for the most cynical caseworker on a bad day, to ensure that any caseworker who reads it will view it favorably.

So, what are examples of good evidence? Some of them are obvious – children or stepchildren for which both partners have cared, for example, are an example of strong evidence of a subsisting relationship. If a couple has been living together for a while, the requirement can be relatively easy to fulfil. Joint tenancy agreements, joint bills or mortgage deeds are good examples of proof the Home Office would most likely accept as evidence of the relationship. Any other correspondence, especially from government departments or local government, sent to the applicant at the same address as their partner would also get the applicant brownie points.

Home Office guidance specifies that cultural and external factors must be taken into account when evaluating the genuineness of a relationship. If for cultural or religious reasons, the applicant couple did not live together before they got married, for example, or did not know each other very well, that should not mean that their relationship does not satisfy the requirement.

Thus, if a couple has been living apart for a lengthy period of time, or have never lived together before making the application, the situation might be a bit more complicated, and the evidence needed a bit more creative. Good examples of evidence include joint holiday bookings, visits to each other’s home countries, shared financial responsibilities (e.g. bank accounts, savings, utility bills, membership accounts, …), and plans for the future in the UK (think accommodation, finances, etc.) Witness statements from the couple, their family members or neighbours can also be useful.

As ever, this briefing this is not a substitute for legal advice. Fulfilling the “genuine and subsisting relationship” requirement for the purposes of a UK spouse visa application can be one of the most challenging aspects of the process.

Couples who have received a refusal on such grounds could benefit from legal advice to strengthen their evidence in order to submit a subsequent successful application. If you would like an experienced immigration lawyer to talk about your specific application, you can book our one-off video consultation service here. If you have a question about this service you can contact us here or send us a question on WhatsApp.

Rescue flight brings vulnerable asylum seekers to the UK for family reunion by Charlotte Rubin

On Monday, a group of 52 asylum seekers and refugees, including 16 unaccompanied minors, flew from Greece to Britain to be reunited with their families in the UK. The transfer had been delayed due to the COVID-19 lockdown.

Under the EU Dublin III Regulation (the Dublin Treaty), family reunifications are facilitated if a close relative is already in the country of destination. As such, section 67 of the Immigration Act 2016 provides that unaccompanied refugee children can lodge an asylum claim to come to the UK from another Dublin State if they have family in the UK to be reunited with. The burden of responsibility for those children lies on the State in which the child has family ties, in this case the UK, and it is up to that State to make arrangements to transfer the child.

In light of the COVID-19 pandemic, however, family reunification has been suspended across much of Europe as a natural consequence of closed borders and cancelled flights. After a six-week corona-related delay, a joint effort by the UK and Greek governments allowed a flight with over 50 migrants to go ahead and bring over 50 migrants to the UK from Athens on Monday. The individuals on the flight included people from Somalia, Afghanistan and Syria. Many of them have been living in Greece’s overcrowded refugee camps for months, alone and in problematic sanitary conditions. There are currently 42.000 people on the Greek islands. Amongst these are at least 1500 unaccompanied minors, in addition to another 3500 unaccompanied children who are stranded on the mainland.

The UK and Greece recently committed to a Joint Action plan on migration in which they focus on family reunification, and specifically on the best interests of unaccompanied children in Greece. Monday’s flight can be considered a first direct product of this pact. Although this renewed commitment to family reunification efforts under the Dublin treaty is welcome, the pact comes with significant shortcomings.

On the one hand, the Action Plan is only valid for “as long as the UK remains bound by the Dublin Regulation.” In other words, it will only stay in force until the end of the transition period – which is less than eight months away. Once the transitional period ends, and the Dublin Treaty is no longer binding on the UK, there is no guarantee that unaccompanied minors will still be able to join their family members in the UK. Additionally, the pact only addresses unaccompanied children who qualify for family reunification. It does not satisfactorily deal with the relocation of other unaccompanied children stuck in Greece. In order to protect all children refugees adequately, relocation efforts for unaccompanied children in Greece’s refugee camps who do not have family members or relatives in the UK should be in addition to the UK’s pre-existing legal obligations under Dublin III. There is no mention of that in the Joint Action Plan.

The success of this particular flight was a result of intense advocacy by refugee families in the UK working with charities such as Safe Passage, a campaign group which fights for family reunification and two cross-party members of the House of Lords, Lord Alf Dubs (Labour) and the Earl of Dundee, a Conservative peer with responsibility for child refugees at the Council of Europe. Beth Gardiner-Smith, the CEO of the refugee charity Safe Passage International, said in a news release: “The British and Greek governments have shown real leadership in reuniting these families despite the travel difficulties.”

Let’s hope they keep doing so in the future.


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