ONE IMMIGRATION SUCCEED IN A PARTNER APPEAL RELYING UPON HUMAN RIGHTS ARGUMENTS

Readers of our website will be aware from a previous articles that if the financial requirements of the current Immigration Rules introduced on 09/7/12 are not met you can plead that the sponsoring partner’s and any child’s human rights will be violated if the overseas partner/parent is not allowed to come to the UK to enjoy family life here.

We always advise clients to do their up-most to meet the financial requirements of the Rules because an application will almost invariably be refused by the Visa Officer if they are not met.  In fact the Immigration Rules do not even permit somebody who does not meet the financial requirements to qualifying on a human rights basis.  We often consider the following options with clients:

  1.  Getting a second job
  2. If the couple are living abroad together, for the sponsoring partner to come to the UK to work for at least six months in employment where the salary meets the financial requirements or will do so when savings are taken into account.
  3. In some cases we have also advised on the couple relocating to an EEA country if the sponsoring spouse is a British Citizen (but please take into account government legislation which came into force on 01/01/14 and attempts to restrict what is known as the “Surinder Singh” route.  A later article will deal with this aspect).

Where the application is made under human rights and refused the case will have to be appealed to the First Tier Tribunal with the added expense and stress of an appeal/uncertainty of the outcome.

In this case there was no short term prospect of meeting the financial requirements.  The partner was working regularly abroad but his income could not be taken into account because the Immigration Rules do not permit this. The couple already lived overseas for some years, not in an EEA country and wanted to return to England to settle here because of the interests of their teenage children and in particular their education.  There were quite unique facts in their case:

  • The partner had obtained settlement in the UK previously but the couple had decided to live overseas in the partner’s country to expose their children to the partner’s culture, his family there and the partner could pursue career opportunities there.  Unfortunately, the children who were mixed race faced discrimination in the partner’s country and as a result their education and confidence suffered.  As the partner had stayed away from the UK for more than two years he could not benefit from their “returning resident” rule – he had returned to the UK as a visitor and therefore had lost his returning resident status. During the period of separation there was plenty of evidence of the family contacting each other and numerous visits between them but the prospect of further visits of the partner to the UK (which was cheaper and more convenient to the family as the children were in full time education) were diminished by the failed settlement visa application so there was a real risk that the partner would not be able to come to the UK as a visitor to maintain contact with his family.

Fortunately the Immigration Judge accepted that the human rights considerations of the partner’s British Citizen wife and two British Citizen children outweighed the financial requirements of the Immigration Rules.  The family were able to enjoy Christmas and New Year in the UK.

Readers of this subject may also be aware of the hearing of the test case challenging the spouse minimum income rules is listed in the Court of Appeal (“MM Javed and Majid v SSHD [2013] EWC 1990 Admin) in March 2014 and we will let readers know the outcome of the decision and its likely implications as soon as possible after the outcome.

ONE Immigration
February 2014

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