HOW TO MAKE A VISA APPLICATION IF YOU DO NOT MEET THE FINANCIAL REQUIREMENTS OF THE NEW PARTNER’S RULES FROM 09/07/2012

Exemptions to the Financial Requirement:

To recap the financial requirements of the rules do not apply to the following:

  1. Remember the rules do not apply to EEA Nationals exercising their freedom of movement rights in the UK eg: as workers/students
  2. If the Sponsor, the person resident here who is calling the Applicant here is in receipt of carer’s allowance or other named disability related benefits.  Where you receive these        disability related benefits you are not required to meet the new financial requirements introduced on 09/07/12 but you will still need to demonstrate that the Applicant will be  adequately maintained without having recourse to public funds and without relying on promises of third party support. Caselaw states that you could take into account third party undertakings so this may be an area that needs to be tested in the courts.
  3. They do not apply to spouses/partners of persons here under the points based system.
  4.  British citizen children do not need to be taken into account when calculating the income required

NB/ THE FINANCIAL REQUIREMENTS DO APPLY TO PARTNERS OF PERSONS GRANTED REFUGEE STATUS/HUMANITARIAN PROTECTION

If you are employed and do not have the required level of income you can rely upon cash savings but these need to be substantial and where there is a deficit the starting point is £16,000 cash savings and more. (e.g. for a £100 shortfall in annual income you need savings of £16,250 – see our leaflet “partners applying for a visa under the Immigration Rules after 9th July 2012)  You cannot rely upon cash savings where you are self-employed.

If there is no possibility of you meeting the financial requirements in the near future consider delaying your application; however. UKBA require at least six months proof of meeting the financial requirements (12 months in some circumstances such as a change of jobs) so you could delay an application for sufficient time to collect the required evidence.  If not, you should consider an application outside of the Immigration Rules. This could be based on a number of different provisions of international and domestic law including Article 8 of the European Convention of Human Rights – the right to respect for private and family life is part of English law under the Human Rights Act. This is not a trump card. The issue will likely be the proportionality of refusal and success will depend on the particular facts of your case i.e. whether your circumstances outweigh the public interest in maintaining a firm and fair immigration system.

If – and also where you have children – Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UKBA to carry out its functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. This still does not guarantee success. Other factors (such as criminality) may outweigh your children’s interests; however the starting point must be what is in the childrens best interests.  UKBA have to make an investigation into the child’s best interests and the child may need to be interviewed by them. 

Applications where you do not meet the Financial Requirement:

Where you are relying upon Article 8 and best interest of children considerations you run the risk of being refused but may be successful on appeal depending upon the personal or compassionate circumstances of your case.  The application therefore needs to be very detailed and give as much information of these personal or compassionate circumstances as possible and where necessary support them with background information and other evidence. 

For example: If you have mixed race children and there are discrimination issues in the country where the Applicant lives you should try to obtain background evidence eg; evidence from respected human rights watchdogs or other organisations about the extent of this problem that would inhibit the children’s education, career and emotional development.

Significant Others

English law states that you have to take into account the impact of a decision to refuse a visa upon all those who share family life with the Applicant. 

List all the family members who will be affected by such a decision;

  • Give their names, date of births and nationality/immigration status.
  • Confirm their relationship to the Applicant and Sponsor and obtain statements from them detailing their personal relations with the Applicant and Sponsor, their contact with each other, its regularity, any emotional/physical/financial dependency they have on the Applicant and/or the Sponsor and the affect upon them if the couple have to make their family life in another country.
  • How will they cope with the separation? Will they be able to visit the couple overseas?

You will need to show the affect that it will have upon the person of separation from the persons they are enjoying family life with. 

Where children are involved list their ages, names, nationality and date of births. More emphasis is given upon children who have British Citizenship, the importance of British Citizenship and the benefits it confers upon the recipient (the relationship of the children to the couple, ie: niece, nephew, stepchild, child, partner’s child etc)

You should concentrate upon the impact of the children’s education, progress and opportunities in the country where the children may be forced to relocate.

  • Does the child hold links with the country of relocation?
  • Do they speak the language?
  • Can they adapt to the culture there?
  • Are there any medical reasons/problems preventing the child from re-locating?

Conduct a realistic assessment of their ability to adjust to life there.

Where the children are of an age where they can state their wishes you should obtain a written statement from them. Where they are younger there may be other ways to identify their feelings e.g. pictures drawn by the child.

Where one of the parents is a British Citizen or an EEA national or the children are British Citizens or EEA nationals, UKBA should accept that there is no requirement requiring an EEA national or British Citizen to relocate outside the EU.

You should spell out the difficulties in relocating overseas in as much detail as possible, statements should be signed, dated and should enclose evidence of the writers identity. 

Look on the internet for information in support of the application.  A useful starting point is the UKBA website –

  • What do they say about the country where UKBA may claim they can relocate?
  • What difficulties are there for the couple based upon their ethnicity/race/gender?
  • Are there any other difficulties?
  • Are there reports from respected human rights organisations and respected publications that can backup the difficulties with relocating?

Where you can afford it consider obtaining an experts report upon the impact upon a child of the separation from his/her parent. 

If the application is refused you will have a right of appeal against the decision e and you will be able to argue the case before an Immigration Judge.  All work you will have completed in making the visa application will assist in preparation for the appeal.

UKBA have factors which they associate with to assess whether a relationship is  genuine/subsisting or not.  These can be found in the Immigration Directorate Instructions FM – under application FM of the Immigration Rules- FM 2.1.  It is useful to address these factors because the Visa Officer will be guided by them. It should be noted that they are not law – more important guidance comes from case law (cases decided by the Courts which clarify the law).

Case law states that the matrimonial relationship must be real rather than merely a formality i.e. a marriage on paper only with no real substance. 

To demonstrate the nature of the marriage/relationship make a statement about the history of the relationship;

  • When the couple first met, started dating or when they were first introduced with a view to marriage.
  • Who introduced them? Why were they considered as suitable partners?
  • Is it a love/semi-arranged marriage? Emphasis any compatibility factors – eg: the couple are from the same community/caste/religion, are well matched in terms of age, education, families are well known to each other, the couple are related to each other than through marriage,
  • Evidence of contact with each other. 

Show the relationship is continuing;

  • Evidence of contact with each other during the period of the relationship,
  • Periods spent visiting each other and periods of cohabitation.

Emphasise that the marriage is recognised by civil authorities and/or their respective religions etc.

We advise that where we are requesting the Visa Officer to depart from the Immigration Rules and grant a visa based upon Article 8/best interests of children, it may be helpful to try and get as close to complying with the relevant Immigration Rule (relating to partners) as you can, including the financial requirements. In English law if you do not meet the requirements of a rule your application should be refused regardless of how close you are to meeting the requirements BUT the Visa Officer does have a discretion to grant a visa where all the requirements of the rules are not met.  The current Immigration Rules can be found on the UKBA website under Policy and law > Immigration Rules.  This is to try and persuade the Visa Officer to grant a visa and if refused, this may lay the groundwork for a successful appeal.

Where we have listed factors to cover in a visa application, the list is not meant to be exhaustive but indicative of the type of matters you need to consider. We recommend in all cases that you take advice upon the particular circumstances of your case.

For further information or advice on this or other areas of immigration law please telephone One Immigration on 0116 255 2110 or click on the ‘Contact’ tab above to email your enquiry.

 

 

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