ukspousevisasblog

[ukspousevisasblog]

HAVE THE CHANGES IN THE MINIMUM INCOME THRESHOLD FOR SPOUSE/CIVIL PARTNERSHIP MADE A DIFFERENCE?

The predicament of people who have been denied a UK Spouse/Civil Partnership Visa or a Spouse/Civil Partnership Visa extension is still making headlines. The Guardian reported in August 2018 on a young woman who attempted suicide after her fiancé, an Albanian national, was denied entry to the country. Paige Smith, a British citizen, did not reach the £18,600 income criterion, according to the Home Office. It was then revealed that the Home Office misplaced a critical payslip demonstrating Ms Smith fit the criterion, despite being submitted four times by a Solicitor and Ms Smith's MP. The appeal Judge ruled the Visa should have been accepted in ten minutes; instead, the couple had to wait two months for the Home Office to announce it would not challenge the decision.

According to the Guardian, Ms Smith is one of over 1,000 members on the Reuniting Families Facebook page who can attest to the difficulties faced by tens of thousands of British citizens wanting to bring their non-EU wives and dependents into the country. The 'hostile atmosphere' created by Prime Minister Theresa May is making it more difficult to obtain a Spouse Visa.

The following are the prerequisites for obtaining a UK Spouse Visa for a non-EEA national:

Your civil partner must be a British citizen or have a permanent residence in the UK.

You must be lawfully married or in a civil partnership and have met each other.

You intend to live with your sponsor and have sufficient living quarters.

Your sponsor meets the annual financial criteria of £18,600 (plus £3,800 for the first child and £2,400 for each additional kid).

You have a good command of the English language.

The original visa is for 33 months, following which you can request for a 30-month extension. When you apply for a UK Spouse/Civil Partnership Visa extension, you must demonstrate that you meet these requirements once more. In order to be granted an extension, you must additionally establish that you have been living together in a marital or civil partnership relationship. You may be able to apply for Indefinite Leave to Remain after five years.

Getting above the poverty line

Spouse/CivilPartnership Visas are frequently denied because the sponsoring partner's income falls below the £18,600 standard. This sum is earned by less than 40% of full-time and part-time workers in the United Kingdom. Following the Supreme Court's decision in MM (Lebanon) and others v Secretary of State for the Home Department [2017]UKSC 10, the Appendix FM Minimum Income Rule was amended. These modifications resulted in:

In some cases, decision-makers may want to investigate alternate sources of revenue.

If failing to comply with the provisions would result in "unjustifiably harsh consequences," an art. 8 evaluation should be made.

Section 55 of the Borders, Citizenship and Immigration Act 2009 would apply to Appendix FM.

In some circumstances, public funding can be utilised.

As per Appendix FM Guidance, the Home Office will consider alternate sources of income in Spouse/CivilPartnership Visa cases where:

"The decision maker must assess whether denying the application would violate Article 8 of the European Convention on Human Rights because it would have unjustifiably harsh repercussions for the applicant, their partner, or a relevant child.... The best interests of any relevant kid must be a major concern for the decision maker."

Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 1776.

This recently resolved case involved two appeals in which the applicants did not satisfy the required minimum income.

The first appeal concerned a Pakistani national who wanted to join his British citizen wife in the UK. The wife had been jobless for a year until finding work with a local organisation four months before her husband sought for leave to join. The sponsor's income did not match the minimum income criteria of £18,600 in the 12 months prior to the application, thus the Entry Clearance Officer (ECO) denied entry.

The appeal was upheld by the First-Tier Tribunal, which reasoned that removing the wife and her children and forcing them to reside in Pakistan would be a disproportionate interference with their human rights. A Jamaican woman and her son were the subject of the second appeal. Her sponsor failed to give appropriate documentation that he could fulfil the minimal income criterion, so the ECO denied her entry. After reviewing more material, the Tribunal determined that the sponsor could sufficiently support for his wife and kid, and that the refusal would be excessive on human rights grounds. The judgement of the UpperTribunal was upheld.

The Court of Appeal, however, found that the Upper Tribunal erred in overturning both ECOs' refusals since they relied on Justice Blake's decision in MM (Lebanon) [2014] EWCA Civ 985, which had been overruled.

Lord Justice McCombe and Lord Justice Lindblom, in particular, expressed surprise that the applicants for entrance clearance had chosen the appeal path. The parties could have saved time, money, and the stress of going through the appeals process if they had simply resubmitted their applications when they were able to satisfy the minimal income criteria.

Conclusion

From the standpoint of an immigration lawyer, it appears that the Home Office is still making decisions on Spouse/Civil Partnership Visas as if the revisions to Appendix FM never happened. As a result, applicants should exercise caution before filing an appeal and seek expert advice on whether this is the best course of action. A new programme may be able to reunite a couple sooner and more cost-effectively.

Chauhan Solicitors: Immigration Lawyers based in London.

They have extensive knowledge of all aspects of UK immigration, including Dependent Visas, Indefinite Leave to Remain, Unmarried Partner Visas, British Citizenship, UK Ancestry Visas, and Sole Representative Visas.

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Immigration Lawyers in UK for Spouse Visa Application

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