Earlier this year, many applicants for the spouse/partner visas felt relief after the UK High Court found the controversial UK immigration rules requiring a minimum income of at least
£18,600 for spouse/partner visa applications, as 'unjustified and disproportionate' where the sponsor is a refugee or a British citizen.
The UK Home Office has however filed an appeal against the judgement made on the 26th of July. This appeal has now been listed for March 2014 in the Court of Appeal.
Whatever the outcome of the challenge, things could possibly change again soon, as the new Immigration Bill currently going through Parliament will at some point in 2014
set out the Government's definition of the balance to be struck between the financial requirements for spouse and visa applications and the public interest.
BIC will keep clients updated on the issue.
In the meantime, please follow this link for FAQ on the matter - http://www.bic-immigration.com/immigration-news/item/153-faq-on-the-family-migration-judgement
BIC had a number of questions from clients after the UK High Court found the controversial UK immigration rules requiring a minimum income of at least £18,600 for spouse visa applications, as 'unjustified and disproportionate' where the sponsor is a refugee or a British citizen.
The UK Home Office said in response to the judgement that it will pause all applications that would have been refused on the grounds of the income threshold not being met, and that they will make a further announcement in due course.
Please see below some questions and answers on the issue.
Is it still possible to apply for a spouse/partner or child application under the UK family migration rules?
Yes, it is.
However, if you do not meet the minimum income threshold, the UK Home Office will pause consideration of your application, until further notice.
However, applications that will be refused based on the other requirements not met, such as the English language requirement, and that the relationship must be genuine and subsisting, will be continued to be processed and decided as normal.
What happens if I do meet the minimum income threshold requirement?
If you do meet the minimum income threshold requirement, your application will be considered as usual, and should you fulfil all the other requirements, you should be successful in your application.
How long will this 'pause' in considerations of applications that do not meet the income requirement be?
We have no further information in this regard, but will inform clients as soon as we hear anything. The UK Home Office said that it will make further announcements, as soon as they have considered the implications of the judgement.
What if I want to withdraw my application?
If your application has been 'paused' and you withdraw your application, you will receive your passport back, but will lose your application fee.
The UK High Court has found the controversial UK immigration rules requiring a minimum income of at least £18,600 for spouse visa applications, as 'unjustified and disproportionate' where the sponsor is a refugee or a British citizen.
As a result the UK Home Office said in a statement that it will pause decision-making on some spouse and partner and child settlement visas, as well as leave to remain applications to enable them to consider the implications of the judgement.
The pause will apply to all family migration applications, where the applications would be refused solely because the rules relating to the minimum income threshold are not met. The UK Home Office said that the pause will also be extended to adoption cases which would be refused on the income requirement.
However, applications that will be refused based on the other requirements not met, such as the English language requirement, that the relationship must be genuine and subsisting, will be continued to be processed and decided as normal.
The UK Home Office said that it will make further announcements in this regard, as soon as they have considered the implications of the judgement.
BIC will inform clients as soon as new information becomes available.
What about my partner?
One of the most frequently asked questions posed to BIC by clients is how a non-EU partner can join them or stay with them in the UK. Fortunately, there are ways in which the UK Immigration system allows for non-EU citizens to join their partners in the UK. One of the ways for same-sex partners to stay together is by means of the civil partnership.
What is a Civil Partnership?
The Civil Partnership Act came into operation in December 2005 and allows people of the same sex to register as civil partners of each other.
It is a legal union that gives the relationship legal recognition and gives both parties to the partnership added legal rights and responsibilities. This enable them to receive the same legal treatment across a range of important matters, similar to that of a married couple, ranging from tax issues, employment and pension benefits, a duty to provide reasonable maintenance for the civil partner and any children of the family to recognition for immigration and nationality purposes.
Although it is not the same as a marriage, it allows for people of the same sex to register a legal union similar to marriage, although it is an entirely new legal concept.
Registering a civil partnership is a serious commitment and does not end when one of the parties walk away. In order to end a civil partnership, civil partners are required to go through a court based dissolution which addresses the same issues as a divorce settlement. A civil partnership can also end through annulment or upon the death of one of the parties.
How does one register a civil partnership?
Both the partners must give notice to register a civil partnership at a special register office. If you are subject to immigration control, before you will be allowed to give notice, you must:
• have been granted entry clearance to the UK specifically for the purpose of registering a civil partnership there, or
• have been issued with a certificate from the Immigration and Nationality Directorate (IND) giving you permission to register a civil partnership,
• or provide proof of your indefinite leave to remain status in the UK.
The registrar is required to report any civil partnership if he/she suspect that the parties are entering into the partnership as means of circumventing immigration control.
Fifteen days after giving notice of the civil partnership the civil partnership can be registered, which is done once the couple has signed the civil partnership document in the presence of a registrar and two witnesses.
How does a civil partnership affect one's Immigration Status?
If you are the civil partner of a person who is either a British citizen or who holds indefinite leave to remain in the UK (permanent residence), the civil partnership provisions are exactly the same as those in place for spouses of British citizens or spouses of persons settled in the UK. Under the Civil Partnership Act you will have similar immigration rights to married couples. There are no work restrictions on the civil partner of a British citizen or person settled in the UK. In such cases the civil partner will be able to apply for 30 months leave to remain in the UK. After the 30 months, an application can be lodged for another 30 months, which should take the applicant to the five-year qualifying period for Indefinite Leave to Remain.
Note that there are different qualifying periods for applications submitted before 9 July 2012.
If you are the civil partner of a person who is subject to immigration control in one of the permanent immigration categories such as a Tier 1 or Tier 2 category, you can apply to join him or her in the UK as a dependant for the same time as their leave to remain is granted. After you have obtained this dependant visa, you will be able to work in the UK without any restrictions, subject to your partner maintaining their status.
It is also possible to apply for leave to enter the UK as the civil partner of a person with a student visa, if the student visa is granted for longer than six months. The leave to remain will be granted for the same period as the student's. As this is a temporary immigration category it will not allow you to qualify for Indefinite Leave to Remain and both partners should leave the UK upon the expiry of the visa or look to switch to another immigration status.
Are there any alternatives to the civil partnership?
In some cases same-sex partners are not ready yet for such a serious commitment as the civil partnership, in order to stay together in the UK as partners. In such cases the unmarried partner visa can be considered, as this visa is available to persons in both heterosexual and same-sex relationships.
In order to qualify for this type of visa, you will need to prove that you have been living together in a relationship akin to marriage or a civil partnership, which has subsisted for two years or more.
In July 2012 the UK Home Office introduced stringent new immigration measures that impacted adversely on the lives of many families and couples, both British and foreign.
This rule change introduced a minimum income threshold of £18,600 to sponsor the settlement of a non-EEA spouse, partner, fiancé or proposed civil partner. The threshold increases for any children sponsored.
The Administrative Division of the High Court in Birmingham heard the challenge to the new family migration rules (MM and Others v Secretary of State for the Home Department) on 5 February - 9 February 2013.
We are now awaiting a decision by the High Court and will keep clients posted as soon as more information is available.
The BBC reported that immigration inspectors have discovered more UK Border Agency (UKBA) backlogs, totalling more than 16,000 cases. These backlogs relate specifically to requests to settle in the UK through marriage.
Reportedly, more than 2,000 cases were dumped in boxes while applicants waited for more than a decade to hear if their partner had permission to live in the UK.
The UK Immigration Minister, Mr Mark Harper, said that around 14,000 of the old cases involved applicants who had wrongly been told they could request a review of their decision, when they should have put in a formal appeal. He further said that the UK Border Agency was not a shambles and that managers were getting a grip. He insisted that these cases had not been forgotten about.
Mr John Vine, the chief inspector of Immigration, said that he should not be discovering these backlogs and the agency should know about it workload and prioritise its resources. He further said that applicants deserve a better service.
Q: I have British citizenship and will be marrying my long-time girlfriend still based in Australia, later this year. She will be joining me in the UK after the wedding. I believe from hearsay that we would need to apply for her for the UK spouse visa. Can you please tell me what the criteria for this visa are, and whether she will be allowed to work on this visa?
A: Yes, she would indeed have to apply for the UK spouse visa in order to join you in the UK as dependant.
In order to qualify for the UK spouse visa, she will have to show that she is married to a person present and settled in the United Kingdom. She will also need to show that she intends to live with you permanently and that your marriage is subsisting. Both applicants must be 18 years or older.
As sponsor, you will be required to prove a minimum income threshold of £18,600 for the settlement of your spouse. If you do not meet the income threshold there are other ways that you can meet the finance requirements and we would be happy to discuss this with you.
If she is successful in obtaining the UK spouse visa, she will be subject to a probationary period for settlement of five years, in order to test the genuineness of the relationship.
Fortunately, there are no work restrictions on the holder of the UK spouse visa and your wife-to-be will be able to work for an employer, start her own business or combine the two.
Please contact our offices for further information.
A leaked cabinet letter from the UK Home Secretary, Theresa May to Nick Clegg has revealed some stringent proposed immigration changes for the family migration route.
In the letter a new income of £25,700 per year is proposed for anyone looking to bring a spouse, partner or dependant to the UK from outside the EU, from June 2012. This income threshold is a drastic rise from the current threshold of £13,700. This minimum income threshold is also set to rise with every dependant brought in.
It is further proposed in the letter that the current probation period for spouses and partners must be increased from 2 years to 5 years, before they can apply to live permanently in the UK. A higher level of English is also proposed. These changes are proposed to take effect in June 2012.
BIC would like to advise all clients who want to make use of the family migration route, to do so as soon as possible in order to avoid these possible stringent new immigration measures.
There is currently a rumour going around that the probationary period for spouses will increase from the current 2 years to 5 years, together with other
Pleanote that this rumour has not been confirmed.
It may however be advisable to apply for the spouse visa before April 2012, in order to prevent a possible extended probationary period.
Please contact our offices for more information.
Following a judgment of the Supreme Court that challenged a requirement under the Immigration Rules for both foreign spouses and their sponsors in the UK to meet a minimum age of 21 before the foreign spouse could be granted a visa to enter or remain as a spouse or partner, the UK Border Agency has announced that persons can request a review of an earlier refusal due to the age requirement, by 31 May 2012.
The Supreme Court has ruled that, whilst they recognised that the Secretary of State was pursuing a legitimate and rational aim of seeking to address forced marriage, the change to the rule (increasing the minimum marriage visa age from 18 to 21) disproportionately interfered with the Article 8 rights of those who were in genuine marriages.
Changes to the Immigration Rules have been laid in Parliament today to reinstate a minimum age of 18 for a spouse, civil partner, fiancé(e), proposed civil partner, unmarried partner or same-sex partner and for their sponsor in order to qualify for entry clearance, leave to enter, leave to remain or a variation of leave on that basis. These rules will come into effect on 28 November 2011.
Please contact our offices for further information.