DECISION IN “MM” WHAT NEXT?
Readers will be aware that the Government won their appeal upholding the lawfulness of their rules covering the financial requirements of partners. This can be viewed here
The unsuccessful parties are likely to apply to the Supreme Court to hear the matter as the case raises important points of principle and some of the principles are to be argued in a case which is already proceeding to the Supreme Court. However this is likely to take months and as with all litigation, the outcome is uncertain.
In the meantime the Home Office will be making decisions on all those cases they have put on hold pending the judgement from 28/07/14 so ensure that you have replied to correspondence from High Commissions/Embassies where Visa Officers have asked for more information about the financial requirements. In some cases we have seen, the visa officer haven’t taken into account the Sponsors second job to meet the requirements or simply misinterpreted information. On a few occasions we have had to contact a Sponsors accountant to seek clarification on documents and what they show about income and in other cases Sponsors inform us that all the required information was forwarded with the application but because they employed agents overseas, copies of the applications and documents have not been made and it is impossible to conclude whether everything that should have been submitted was done so.
Take Advice – If you do not clearly meet the financial requirements and were hoping that the financial limits would be reduced, discuss the merits of succeeding in any appeal based upon human rights submissions.
For an example of the type of Human Rights case that may succeed see our previous article – One Immigration succeed in a partner appeal relying upon Human Rights arguments. Otherwise, unfortunately you should consider withdrawing the application and submitting a fresh application.
Submit a fresh application if you meet the financial requirements and other requirements of the Rules. Do not neglect the other requirements of the rules, for example if there has been no co-habitation for a considerable period (because your case has been on hold/ it has been a long time since you made the visa application and you are unable to return overseas and your partner may have been refused a visit to come to the UK) and/or there is lack of evidence of continuing contact by way of electronic commination/post/telephone calls the fresh application may be refused on grounds the relationship is not subsisting and doubts the Visa Officer has of your intention to live together permanently. We find that Applicants only concentrate on the financial requirements. We do understand this because it is the gateway and an objective factor which you can assess your application by.
VERY IMPORTANT DEVELOPMENT – the Immigration Act 2014 was passed in May 2014 and there are provisions in the Act (not yet implemented and no date given for implementation but we think may come into effect in October 2014) to reduce appeal rights, access to the independent appeals system and replace it with an application for administrative review to the decision maker. This is a very regressive measure and denies appellants the opportunity to have the correctness of the refusal decided by an independent body. Under the Immigration points based system there is already in place a system of administrative review which is poorly managed. Why give an ineffective body the ability to review its own (often poor) refusals? The onus therefore will be upon appellants to provide the best/clearest information and details with applications as you may not be able to correct or clarify matters at a later stage as you can currently to an independent body.
Administrative review will be on limited grounds only. The grounds will there will not be as wide as the current provisions for grounds of appeal to the appellate authorities.
The change to appeals rights will not be retrospective i.e. where a decision is made before commencement the current appeal rights will remain.
If a re-application is likely to be unsuccessful and you want to consider another option rather than wait untill you meet the financial requirements or other requirements of the Immigration Rules you may wish to consider the:
Surinder Singh Route: this is based on European Union free movement rights. The case of Surinder Singh established the principle that EEA Nationals and their non-EEA national family members can rely on free movement rules when returning from another European union country if the EEA national has been exercising European Union Treaty Rights in that country (for example as an employed/self employed person or student). The EEA National can bring their non EEA family members with them.
The government has attempted to close this route and brought amendments to their interpretation of EEA law by introducing immigration rules on 01/1/14
These rules make it a requirement that the EEA Nationals “centre of life is transferred to the EEA state” where they resided and exercised EU Treaty Rights. The Rules list factors to assess whether the centre of life test has been met and include the period of residence in the EEA state, the place of the EEA Nationals principal residence and their degree of integration in the EEA state.
These are both subjective and objective requirements. The difficulty with subjective requirements is they can be interpreted in a way contrary to EU law by Visa Officers. The Home Office guidance (this is not law) states the longer a British Citizen has resided in another EEA state and exercised Treaty Rights the more likely it is that they have transferred the centre of life to that member state and gives the example of a British Citizen living and working in an EEA country for a period of two years or more. The guidance states that in this situation they are more likely to meet the centre of life test.
The centre of life test is arguably contrary to EU law. In a European case “O v the Netherlands” decided after the January 2014 EEA amendments, although the European Court was not looking at the UK amendments to EEA law, the decision arguably supports the position that the Government amendments to EU law are contrary to EU law.
The European Court decision states that you have to examine whether the European citizen is creating or strengthening family life with their non EEA national during genuine residence and found that a period of three months residence is sufficient. The Court did warn against abuse of the Rules.
Would be beneficiaries of the Surinder Singh route should take expert advice, or undertake further research on the subject prior to any relocation. Research/advice to include the degree of integration required to meet the test and how to evidence it the impact of return trips to the UK, where the EEA nationals principal residence may deemed to be especially if they maintain a home in the UK and return here regularly.
For example, if the EEA national has a temporary work contract overseas and lives in a hotel in the EEA country returning to a home in the UK on the weekends the Visa Officer may refuse an application stating that the centre of life has not shifted to the EEA country and the principal residence has remained in the UK.
There is a possibility that the amendments to the EEA Rules may be found to be incompatible with EU law. This has happened previously in a case called Metock but it took some years to arrive at this position and for the Home Office to accept the European Courts interpretation of EU law. In the meantime potential beneficiaries may have to endure separation/living away from the UK, and legal costs and inconvenience/stress in pursuing an appeal.
Best advice. Do you upmost to try and meet the “centre of life” requirements. Try to exercise your EU Treaty Rights (working/studying) for as long as possible in an EU country for at least three months.
In this respect it is to be noted that the decision in “O” does appear to widen the scope of EU rights and only requires residence in an EEA state and not any other activity in the EEA country but again this is likely to be contested by the Home Office.
ONE Immigration July 2014