Help with getting Spousal visa without Fiance Visa?

Question

I am a British citizen in Scotland and my girlfriend is from Russian; we plan to be together and marry. She has been here since Dec 19 on a visitor visa extended till the end of July 2020 (Covid-19). We have been together (her living with me) in total for around 9 months including a time last year on a visitor visa.

If we apply to get married and register to do so in Scotland as she is a foreign national the registrar will automatically inform the Home office. I imagine they may ask us to apply for a Fiance Visa but she is already here! Can there be a difference in what is required? My idea is that if we can get married soon we can go straight for a Spousal Visa? Maybe a long shot? It was suggested by the registrar that they (The Home Office) may only want evidence of genuine relationship to allow us to marry then we can apply for spousal visa. Can anyone help?

Answer 1

The UK has a procedure for people who have entered without an intention to marry and subsequently form an intention to marry while they are in the UK. That procedure requires notifying the Home Office, and, as noted in MJeffryes's answer, the Home Office may extend the notice period to 70 days. Then again, they might not.

You can read about the Home Office investigation in the guidance (pdf). The process does not leave room for arguments such as "you can return home so you should follow the normal procedure."

Your new wife will not be able to remain in the UK on the basis of your marriage, because it is not possible to switch from visitor status to family-based residence. But in contrast to the other answer, I would point out that getting the marriage taken care of now, while she is in the UK, will make it easier to get a spouse visa when she wants to return, because you will no longer face the need to convince the Home Office that your relationship is genuine.

Unfortunately for this approach, however, it's currently not possible to marry in Scotland (with some exceptions), so keep your eyes on that page to see whether they start performing marriages again before your girlfriend has to leave the country.

Answer 2

Unfortunately, you cannot get married while visiting the UK unless you hold a Marriage Visitor Visa, which is inappropriate for your partner, since she intends to live in the UK after marriage. The guidance from UKVI states:

All visitors who intend to enter the UK to marry or enter into a civil partnership or give notice of an intention to marry or form a civil partnership, must have a valid marriage/civil partnership visit visa.

Now, arguably your partner did not intend to marry when she entered the UK, but may say that she had to change her plans due to the pandemic. However, UKVI's position will likely be that it will be possible for your partner to return home at the end of her exceptionally extended stay, so she should follow the normal procedure of either applying for a fiancée visa, or marrying outside the UK and applying for a family visa as a spouse.

If you decide to give notice anyway, note that as your partner is a non-EEA foreigner, she is required to give extended notice of intention to marry of 28 days. The Home Office can extend this period to 70 days for an investigation in the event that they suspect a sham marriage. Giving notice without an appropriate visa is one factor used by the Home Office to identify possible sham marriages, and those which warrant the extended notice period. This period would leave your partner not enough time to get married before she had to leave anyway.