Spousal/Partnter Visas Archive

Archive for the ‘Spousal/Partnter Visas’ Category

ICS Legal Full Managed Services

We provide a range of services from immigration advice to advocacy to the Upper Tribunal. Our success is measured by the way we deliver our services to our clients ensuring prompt, acurate, honest and practical solutions.

Application Checking Service

Our unique Application Checking Service allows you to get your application checked by an Immigration Advisor and ensure that the application is valid before you submit it to the Home Office. This service is targeted to all clients, who have a basic understanding of the application process but require assistance with some aspects of the application, or even assurity that the relevant information has been included.

The service includes:

An appointment at our office with all your documents including the application forms. It is critical that your Immigration Advisor ensures that the application is valid, as there is no right of appeal for invalid application.
Completion of any other possible associated application forms or even just checking the application form you have completed is the correct one.
Paying close attention to the Immigration Law specific to your application particularly paying attention to the Immigration Rules and Policies, we will ensure that all the requirements are met and only the relevant documents have been supplied, bearing in mind that any un-necessary documents could delay an application or can even confuse case workers.
Editing your cover letter and adding any required information.

After the consultation, your legal advisor can be contacted at any time for any further clarifications.

Our Full Managed Service (Initial Applications/Entry Clearance/UK Visas/Further Leave to Remain/Settlement)

We offer our best value for money service to our clients. It is a complete service package for all initial applications or those looking for extensions or switches to a different category.

Our advisors will provide you with the right advice for your application; we will further confirm eligibility for you with your chosen applicaion.

This service includes the following:

- Entire consultancy (this will check your eligibility to apply, inform you on how we propose to present your case to the Secretary State of Home Department (SSHD) and discuss options where required).
- Administration services.
- Completion of the relevant application forms (each section will be cross referenced with the documents supplied to ensure the validity of the application. There are important sections and document requirements to ensure the application is valid (not meeting the requirement may lead to refusal without appeal if you fail to respond within the prescribed time under The Immigration Regulation 2003 S1, No 1712).
- Sponsor letter where required. We will discuss the requirements and responsibilities of the sponsors.
- A policy document from us where we outline how you met the Immigration Rules HC395 enabled by the Immigration Act 1971 (cross referencing all the documents supplied, how you meet the rules and any instructions that we need to inform the SSHD when they analyse your case).
- Collecting all the necessary evidence from your self (we will cross reference your documents, create additional documents to ensure that the SSHD can understand where we have derived the information from and for what reasons particular documents are supplied and also exclude any un-necessary documents which can lead to a delay in your application and can confuse the SSHD).
- Collectively going through the documents created with the client to ensure they are happy with the application and after approval this would be ready for submission.

Case Management – complex cases

This section provides details of how we can support you in making further representations to the Home Office. Our Immigration Advisors are equipped with the skills and knowledge to tackle your case and provide the correct solution to your problems. We are able to carry out Administrative Reviews on all PBS applications. At this level, ICS Legal can undertake more complex applications in selective categories which includes applications outside the Immigration Rules and applications under Home Office concessionary or discretionary policies. British Nationality and Citizenship is another area where we can undertake some complex cases.

Our Immigration Advisors have detailed knowledge of Immigration and Nationality law, including:

Grounds for applications.
UKBA practice in the consideration of cases.
UKBA concessionary policies.
Grounds for lodging appeals including human rights grounds.
British Nationality.
Administrative reviews on all point based applications.
Procedures for human rights applications, e.g. One-Stop Notices.

Where an application has been submitted and you require further representations to be made to the Home Office, ICS Legal can carry this out. We have an upto date working knowledge of relevant case laws and precedents and can access and use them effectively when making representations on behalf of the clients.

We have detailed knowledge of the types of evidence needed to support applications outside the Immigration Rules and how to obtain them, and also the relative weight to be attached to different types of evidence.

Just as importantly our knowledge of the European Convention on Human Rights (ECHR), the Human Rights Act 1998 (HRA) and other relevant law allow us to present a case to the Home Office where we feel there is an argument in this point of law and use relevant case laws to support our arguments.

We have a clear understanding and knowledge of immigration and nationality law and have procedures in place to ensure that we submit a successful case to the Home Office.

A list of all services are:

Applications to the UKBA, including human rights applications and concessionary or discretionary applications.
Case Resolution/Legacy Cases and Active Review.
Applications for Humanitarian Protection.
Representing clients in correspondence with the UKBA and at UKBA interviews.
Representations to the UKBA in support of cases.
Drafting client statements.
Submitting One-Stop Notices.
Lodging appeals and representing our clients to the First Tier & Upper Tribunal.
Family reunion applications.
Representations regarding ongoing immigration casework to MPs.
Instructing a barrister or advocate for advice and to draft appropriate grounds of appeal (where permitted by the Bar Council).
Applications to register or naturalise as a British Citizen through residency and marriage to a British Citizen.
Certificates of entitlement to right of abode.
Applying for British Passport through entitlement.
Complex cases on British Nationality.

Sponsor Licence

The points-based sponsor application process has been designed to be straightforward and transparent, however it is important that the correct documents and the correct HR system is in place. The Home Office also conducts audits on you as an employer/educational institution when you make an application for a sponsor licence. We are able to provide support and guidance throughout this process.

Reassuringly we are listed on the Home Office website Click here whereby we have demonstrated a good understanding of the sponsorship arrangements and have provided the Home Office with evidence about the types of checks and services we will make when working with clients. We are able to provide prospective sponsors with a document which assesses their readiness to make a sponsorship application.

The points-based system only covers migrants from outside the European Economic Area (EEA) and Switzerland. If you want to employ or teach an EEA or Swiss national, you should be able to do this without needing the Home Offices permission. There are some restrictions on nationals of countries that have recently joined the EEA. The section for European citizens provides more information on the rights of all EEA and Swiss nationals.

Under the new system, migrants will need to pass a points-based assessment before they are given permission to enter or remain in the United Kingdom. The system consists of five tiers. Each tier has different point requirements.

The number of points the migrant needs and the way the points are awarded will depend on the tier they are applying under. Points will be awarded to reflect the migrant’s ability, experience, age and when appropriate the level of need within the sector the migrant will be working.

Migrants applying under any tier except tier 1 will need to be sponsored in order for their application to be successful. If a United Kingdom organisation wishes to recruit a migrant under tiers 2, 4, 5 or Temporary Workers, they will have to apply to the Home Office for a sponsor licence. Under tiers 2, 5 and Temporary Workers, the sponsor will need to be a United Kingdom based employer. Under tier 4, the sponsor will need to be a United Kingdom based educational institution. Migrants wishing to come to the United Kingdom under Tier 5 sub section Youth Mobility do not require a United Kingdom based employer.

The point-based system consists of five tiers. These are:

Tier 1 – Highly skilled workers, for example scientists and entrepreneurs;
Tier 2 – Skilled workers with a job offer, for example teachers and nurses;
Tier 3 – Low skilled workers filling specific temporary labour shortages, for example construction workers for a particular project;
Tier 4 – Students including child students;
Tier 5 – Youth mobility and temporary workers for example musicians coming to play in a concert.

UK Spouse Visas

There are various types of visa applications for the purpose of settlement in the United Kingdom. One such application is the Spouse Visa. The Spouse visa allows a person who is in a relationship with another, who is settled in the United Kingdom or is applying to settle in the UK, permission to enter or remain in the UK with a view to settlement as his/ her Husband, wife, civil partner or unmarried/ same-sex partner.

What does ‘present and settled mean?

‘Present and settled’ means that the sponsor is either:

• settled in the UK and, at the same time that an application under the Immigration Rules is made, is physically present in the UK; or,
• is coming to the UK with or to join the applicant and intends to make the UK their home with the applicant if the application is successful.

‘Settled’ is defined in Paragraph 6 of Immigration rules HC395 and means “free from any restriction on the period for which he / she may remain in the UK, and ordinarily resident in the UK”.

In order to fully understand the position within the immigration rules, let us look at some basic definitions.

What is a Spouse? – A spouse is defined as the husband / wife of the sponsor and the sponsor is defined as the person to whom the applicant is married. The rules that govern Spouse Visas can be found in Paragraphs 277 – 289 of the Immigration rules HC395.

It is is very important to comply with the age requirement when applying for the Spouse visa. The main restriction is covered by Paragraph 277 which states that; “Nothing in these Rules shall be construed as permitting a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as a spouse or civil partner of another if either the applicant or the sponsor will be aged under 21 (or aged under 18 if either party is a serving member of HM Forces) on the date of arrival in the United Kingdom or (as the case may be) on the date on which the leave to remain or variation of leave would be granted.”-

Quite simply, this means that an application by a spouse should be refused if:

• The applicant will be aged under 21 on the date of arrival in the UK; or
• The applicant’s spouse will be aged under 21 on the date of arrival in the UK.

This is a very stringent rule where very little if at all no discretion is given except in cases where the applicant is within a couple of months of their 21st birthday, and the other party is 21 or over, the ECO has discretion to issue entry clearance but valid only from when the person under 21 has reached their 21st birthday.

LEAVE TO ENTER – Paragraph 281 Applications

If you are making your application from outside the UK, so the immigrant spouse or partner is abroad, then they must obtain entry clearance, regardless of whether they are a Visa or a Non-visa national. and subject to Immigration control. They will need to apply for Entry clearance as a Spouse at the nearest British Embassy post in their country of residence. This does not mean that you have to apply from your Home Country or necessarily, the country of which you are a citizen. You can apply from any country as long as you are classified to be a “resident” there.

For example, Alex is on holiday for 2 weeks in Spain. He wishes to settle with Maria, his wife who is a British Citizen and lives in the UK. Can Alex apply for a Spouse visa in Spain? The answer is “NO” as Alex does not have residency rights in Spain. He is merely there on a short visit for the purpose of a holiday.

When applying for permission to come to the UK in this category, the following requirements alongside the age requirement must be met. These requirements can mainly be found in Paragraphs 281 of the Immigration Rules HC395

Your husband, wife or civil partner must be at least 21 years old (or 18 years old if you or they are a serving member of HM Forces), and must be:

• currently living and settled in the UK; or
• returning to the UK with you to live here permanently.

You must show that:

• You are legally married to each other or have registered a civil partnership. (In this case, having a valid marriage certificate or a properly certified copy issued by the authorities in the country where the marriage ceremony took place would be good supporting evidence. A marriage ceremony that is legally recognised by the authorities of the country in which the ceremony took place will usually be legally recognised in the UK)

• You are going to live together permanently as husband and wife, or as civil partners;
• You have met each other;
• You can support yourselves and any dependants without help from public funds. (This is one of the main requirements, often dubbed, the “maintenance” requirement. Although there is no actual figure stated in the rules to say how much is considered as sufficient, it will usually be assessed by looking at the income and expenditure of the sponsor. The most important question the UKBA will be asking is after the expenditure is subtracted from the income, is the total amount left sufficient to support the parties involved. If the answer is “NO”, the likelihood is that this requirement will not be fulfilled which may result in the application being refused. Sponsors who are currently on social security benefits should be particularly aware as although, they are entitled to apply; the likelihood is that although the spouse is not themselves applying for the benefits, the amount of benefits may increase due to their joining the particular household. If this is likely, the application may also fall short of meeting the maintenance requirement. If the family as a whole do not have funds equal to or in excess of the funds a family their size would receive from welfare benefits, then the ECO/IO is likely to refuse.

This is a matter of fact and may require the help of a Welfare Rights specialist. In general, it is very hard for a sponsor on benefits to show adequate support for new arrivals, without seeking help from a third party. Broadly speaking, where the financial and housing scenario is not clear, the ECO/IO is likely to refuse and leave it to an Immigration Judge to decide.

Maintenance and accommodation can be provided by a third person, that is to say, not directly by the applicants themselves (for example, relatives or in-laws). Usually this will only be acceptable if it is to be short term, for example, whilst a spouse or civil partner is looking for a job. (Despite the wording of the Immigration Rules, the Home Office accepts that accommodation can be shared with other members of a family provided that at least part of the accommodation is for the exclusive use of the sponsor and his dependents, and subject to housing regulations on overcrowding) and if the settled person has more than one husband or wife, only one husband or wife will be allowed to join them here in this category.

LEAVE TO REMAIN – (‘In-Country’) – Paragraph 284 Application

Applications for leave to remain are also known as ‘In-Country’ applications. They are covered by Paragraph 284 of the Immigration rules. This is the Rule for switching from another category to a Spouse visa category. It is not the Rule for extending leave for those who have entered under Paragraph 281. However, the following are excluded from applying and are expected to apply from abroad:

• those admitted for a period of six months or less (e.g. Visitors)
• those admitted for more than six months, but who have not yet spent 6 months in the UK
• those who have remained in breach of the Immigration Rules relating to their status
• those who have married in the UK after a decision has been made to deport the applicant
• those who have married in the UK after there has been a recommendation for deportation
• Those who have been given notice that a recommendation is under consideration following conviction for an offence.

Paragraph 284 is written with the presumption that the applicant has entered as a fiancé, or in a non-settlement category but has since married in the UK. Please be aware that in cases, where a Spouse visa has been refused, the applicants have full rights of appeal.

In-Country Procedures

If you plan to get married or register your civil partnership in the United Kingdom and you are subject to immigration control while in the United Kingdom, you may need to apply for a Certificate of Approval. The rules on certificate of approval do not apply to you if you:

• are a British citizen; or
• are a national of a country in the European Economic Area (EEA); or
• are the family member of an EEA national and have right of residence in the United Kingdom but are not yourself an EEA national; or
• have in your passport a certificate of entitlement giving you right of abode in the United Kingdom; or
• Are not subject to immigration control.
• If you are coming to the United Kingdom from overseas to get married or register your civil partnership, before you can give a registrar notice to marry or register your civil partnership you must have in your passport:
• fiancé(e) entry clearance; or
• proposed civil partner entry clearance; or
• marriage visitor entry clearance; or
• civil partnership visitor entry clearance.
• If you are already in the United Kingdom, before giving a registrar notice to marry or register your civil partnership you will need to:
• have settled status in the United Kingdom; or
• obtain a certificate of approval.

Successful Applications

If an application was made under Para 281(i)(a), leave will be granted for an initial two-year period; this is called “the probationary period “on condition that the spouse or civil partner does not have ‘recourse to public funds’. The spouse or civil partner will be free to work and should apply to the UK Border agency for indefinite leave to remain not earlier than 28 days before their leave is due to expire.
If an application was made under 281(i)(b), (that is, where the applicant has been married or in a civil partnership and living outside the UK for at least four years with a person who has right of abode or indefinite leave), then the applicant will be granted indefinite leave to enter, and will therefore have no conditions attached to the leave.

For applications under Paragraph 281, the form VAF4a is used which can be downloaded from the UK visas website. Following an application under Paragraph 284 (Leave to Remain). An extension of stay as a spouse will be granted for a period of two years in the first instance (see Paragraph 285). In order for the application to be valid, it must be made before the expiry of the applicant’s existing limited leave.

Indefinite Leave to Remain

After the 2 year probationary period, the Applicant will be entitled to apply for Indefinite Leave to Remain which is covered in Paragraphs 287-289 of the Immigration Rules, HC 395. The application must be made before the two years expire – preferably a month prior to expiry.

An application for indefinite leave on the basis of marriage is made to the Home Office on form SET(M).

Anyone applying for naturalisation as a British citizen or for indefinite leave to remain needs to show that they know about life in the UK.
Knowledge can be demonstrated by taking the Life in the UK Test (the Britishness Test) or by studying combined English for Speakers of Other Languages (ESOL) and citizenship classes. The test consists of 24 questions based on the information contained in the handbook “Life in the United Kingdom: A Journey to Citizenship”.

New English language testing for partners

In June 2010 the government announced plans to introduce compulsory English language tests for all non-European migrants applying to come to the UK to join or marry their settled partner. The UK Border Agency has announced that these plans will be implemented from 29 November 2010. From this date, any migrant who wants to enter or remain in the UK as the partner of a British citizen or a person settled here will need to show that they can speak and understand English, by taking an English language test with one of their approved test providers.

The new rules will apply to anyone applying as the husband, wife, civil partner, unmarried partner, same-sex partner, fiancé (e) or proposed civil partner of a British citizen or a person settled in the UK. They will be compulsory for people applying from within the UK as well as visa applicants from overseas. The Home Office is due to publish more information, including a list of approved test providers, before the change is introduced.

Paragraph 287(b), HC 395 gives provisions for Bereaved spouses and under paragraph 289A, it is possible to apply for indefinite leave to remain if the marriage breaks down during the two-year probationary period due to domestic violence, provided certain evidence can be supplied. The above cases are however rare and it may be advisable to seek advice from a specialist when making applications under these provisions.

In conclusion, If your marriage, civil partnership or other relationship permanently breaks down while your partner still has only limited permission to enter or remain in the United Kingdom (that is, during the two-year probationary period before he/she can apply to live here permanently), you should tell the UK Border as soon as possible to avoid braking the Immigration Rules as this may affect future Leave to Remain in the UK applications.

Disclaimer: This article only provides general information on immigration law. It is not intended to replace the advice or services of a Solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of use of this information.

New English Language requirement for Spouse/Partner Visa Applications

The Home Secretary, Theresa May, has outlined proposals that will affect all non-EEA spousal/partner visa applications through the introduction of a compulsory English language requirement test.

Theresa May said, ‘I believe being able to speak English should be a pre-requisite for anyone who wants to settle here. The new English requirement for spouses will help promote integration, remove cultural barriers and protect public services.

‘It is a privilege to come to the UK and that is why I am committed to raising the bar for migrants and ensuring that those who benefit from being in Britain contribute to our society.

‘This is only the first step. We are currently reviewing English language requirements across the visa system with a view to tightening the rules further in the future.

‘Today’s announcement is one of a wide range of measures the new government is taking to ensure that immigration is properly controlled for the benefit of the UK, alongside a limit on work visas and an effective system for regulating the students who come here.’

Anyone wanting to seek entry to the UK as a spouse/partner will need to show capability of basic English at A1 level. This is currently the same level required for skilled workers under the Skilled Tier of the Points Based System. Migrants will need to demonstrate that they are capable of maintaining a standard of English used for every day life in the UK.

This English-language requirement will be coupled with the current requirements such as demonstrating that the relationship is genuine and that you can support yourselves financially to come under a “partner” visa.

The following categories will be affected based on your relationship to a British citizen or someone settled in the UK:

Husband or wife
Civil Partner
Unmarried Partner
Same-sex Partner
Fiancé/e

More stringent English language requirements will result in a reduction in the number of people who will be eligible for entry on a spouse or partner visa. which will help the new UK Government to reduce immigration to the UK. This is part of the Coalition Government’s policy to cut immigration into the UK.

Isabella Sankey, of Liberty (a party organisation on human rights in the UK) said: “While a good command of English is clearly beneficial for someone settling in the UK with their partner or spouse, making this a prerequisite to entering the country is disgraceful.

“What happens to the happily married British citizen with a non English-speaking spouse who returns from abroad to care for elderly parents?

“Surely a common-sense approach would acknowledge how much easier it is to learn English once in the UK.”

For more information please visit the Home Office website:

http://www.homeoffice.gov.uk/media-centre/press-releases/migrants-learn-english