UK Spouse Visa as a route to indefinite leave to remain - immigration solicitors comment on the increasing complexity of the rules

Indefinite leave to remain is permission for a migrant to remain in the UK permanently without restrictions. Helena Sheizon, immigration lawyer from Kadmos Consultants, comments on the increasing complexity of the Immigration Rules affecting partners of British citizens and controversy around interpretation of Human Rights in the context of family immigration.

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Immigration Lawyers

Kadmos Consultants Immigration Lawyers London

The idea behind the new version of the rules was to reduce migrants’ reliance on the public purse, but also to incorporate into the immigration rules the jurisprudence of UK courts on Human Rights of migrants and their families.

London, UK (PRWEB UK) 19 June 2013

Most dramatic changes to UK spouse visa requirements were introduced in the Immigration Rules in July 2012. Partners of British citizens who had made successful applications under this category before 9 July 2012 are covered by transitional arrangements and should qualify for indefinite leave to remain on completion of a two year probation period … provided they meet good character requirements, do not present a burden on the public funds and have sufficiently good knowledge of English and Life in the UK.

The new rules extend initial grant of the visa from two years to thirty months, but also extend the probation period from two to five years, and introduce the requirement of an interim application for extension of leave to remain before the non-British partner can apply for settlement.

Every time an application is made under the new rules the couple have to meet the so called “suitability” and “eligibility” requirements codified under Appendices FM and FM-SE (1). Financial requirements for UK spouse visa are complicated, especially where it comes to the acceptable form of evidence. The couple have to demonstrate sufficient earnings meeting the threshold of £18,600 per year. If the non-British partner is applying for entry clearance, their earnings in their country of origin are not taken into account. The earnings of the British partner may also be excluded, if for examples, the earnings come from employment outside the UK and no follow-up position in the UK is secured confirming a start date within three months of repatriation. The rules are particularly tough on self-employed sponsors – no provisions are made for self-employment outside the UK and the possibility of relying on savings in addition to self-employed income is explicitly excluded.

The hurdle now has to be overcome at least three times: first at the time of the initial application, second at the time of applying for extension, and third with the application for indefinite leave to remain - provided there is no impediment to settlement.
Potential impediment to an application for settlement may even be a minor traffic offence, such as speeding, or failure to meet the required standard of English. The latter requirement will become more onerous from 28 October 2013 when applicants for indefinite leave to remain will need to demonstrate knowledge of English to B1 level, as opposed to current A1 (2).

The cost of applying is also not to be ignored: entry clearance application for spouse visa is £851, the cost of extension application is £578 for a postal application or £953 for same day service, and the cost of applying for indefinite leave to remain is £1051 for a postal application and £1426 for applying in person.

The idea behind the new version of the rules was to reduce migrants’ reliance on the public purse, but also to incorporate into the immigration rules the jurisprudence of UK courts on Human Rights of migrants and their families. There is considerable controversy between this “incorporated” version of Human Rights and the understanding developed by legal practitioners. Migrants who are caught by the restrictive provisions of the new rules are strongly advised to contact immigration solicitors for legal advice and representation.

Kadmos Consultants is a London based firm of immigration lawyers with particular interest in the impact of Human Rights and EU legislation on the rights of migrants in the UK. The firm offers legal advice on all aspects of immigration to the UK.

(1) http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/
(2) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/182545/statement-of-intent-koll.pdf


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