Here’s what you must pay special attention to
If you are a British citizen, have indefinite leave to remain, have a points based migrant visa to remain in the UK or if you have some other legal status in the UK and you are married or will be getting married and want to bring your husband or wife to the UK to live with you, then your foreign spouse will have to satisfy the relevant immigration rules to ensure that they will get a visa to come to the UK to be with you.
The foreign person applying for entry clearance is called an “Applicant” and the settled spouse in the UK is called a “Sponsor”.
If you have permanent legal status in the UK (such as British citizenship or Indefinite Leave to Remain) then your spouse will need to apply for a settlement visa at the British Embassy closest to where they live. The current application form used to apply for the settlement visa is a VAF4a – this form can be obtained at the British Embassy or alternatively, can be downloaded from www.ukvisas.gov.uk.
If however, you have temporary visa status in the UK, such as a Tier 1, 2, 3, 4 or 5 visa, then you will need to apply for your foreign spouse to join you in the UK on the basis of your limited leave in the UK. You will need to use a different application form, usually this will be a PBS Dependant application and your spouse will receive a visa for the same period of time for which your visa in the UK is valid.
The relevant immigration rules for the foreign spouse to satisfy when applying for the visa are contained under paragraph 281 of the immigration rules and are as follows:
“281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:
(i) (a) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; or
__(b)(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and
__(b)(ii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application; and
(ii) the parties to the marriage or civil partnership have met; and
(iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and
(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity”
It should be noted that certain countries request the application to be completed online as they will not accept hand delivered applications any longer- it is important you check this in advance with the relevant British Embassy.
What documents should be submitted?
Your foreign spouse will have to submit a substantial amount of documents to support their application for the spouse visa to the British Embassy. These documents would need to be originals or certified/notarised copies. They should include your:
1. Evidence of Sponsor’s legal status in the UK by way of passport
2. Marriage certificate
3. Photographs of you and your spouse together, over period of time including any recent photographs and the wedding ceremony photographs
4. Evidence of you and your spouse communicating such as itemised phone bill/e-mails/love cards for the past 3-6 months
5. Sponsor’s bank statements/savings accounts for at least 3 months (preferably 6 months)
6. Sponsor’s payslips for the past 3 months (preferably 6 months)
7. Sponsor’s employment contract
8. Sponsor’s tenancy agreement/most recent mortgage statement
9. Photographs of the accommodation where you both will live
10. Independent property inspection report to confirm there will be no overcrowding
11. Letters of support from mutual friends and family of the couple confirming the nature of their relationship
12. Birth certificates of any children
13. Divorce certificates/Decree Absolute showing you/your spouse was free to marry and that your marriage is valid
It must be remembered that most of the documents will need to be provided by the Sponsor. The Entry Clearance Officer may then want to interview the foreign spouse before deciding whether they should be granted a visa. The Entry Clearance Officer will look at the following:
a. Whether there is a genuine and subsisting marriage
b. Whether there is sufficient accommodation in the UK without the need for the UK based spouse to have to claim additional welfare benefits for the foreign spouse that is joining them
c. Whether there is sufficient financial maintenance in the UK without the need for the UK based spouse to have to claim additional welfare benefits for the foreign spouse that is joining them
Where the UK based spouse claims welfare benefits, they can still apply for their foreign spouse to enter the UK but they will need to convince the Entry Clearance Officer that additional recourse to public funds will not be made if their foreign spouse joins them in the UK. This can be quite difficult as the Entry Clearance Officer will analyse the Sponsor’s income and outgoings and calculate whether there is enough monthly disposable income to support the Applicant if granted entry clearance for settlement. Any potential job offers available to the spouse once in the UK is a good way of convincing the Entry Clearance Officer of this as well as evidence of their savings/assets.
It is also important to note that the Entry Clearance Officer will look at the accommodation which the married parties will occupy in the UK. It is acceptable for accommodation to be shared with other members of the family so long as there is a bedroom for the exclusive use of the married parties and there are no issues of overcrowding.
What are the main reasons for the visa to be refused?
In practice, Entry Clearance Officers mostly refuse marriage visa for two main reasons. Firstly, that they do not believe the marriage is genuine and subsisting and secondly, because they do not believe the spouse in the UK has sufficient monetary funds to maintain the Applicant.
To convince an Entry Clearance Officer that the marriage is genuine and subsisting, the items listed at points 2-3 above should be included with the application.
In cases of an arranged marriage or marriage by proxy, it is important the couple meet before the application is made to the British Embassy. If either party was married before, then he/she must include the divorce absolute confirming they are divorced.
To show sufficient evidence of finances, the items listed at 5-8 above should be included. The more evidence of financial funds available to the parties, the better the application. There is no recommended amount of monies required, but a minimum figure of between £3000-4000.00 for a married couple is generally a good figure to show.
It is always a good idea to include a cover letter with your application, listing all the documents you are submitting as well keeping a photocopy of the application and documents you submit for your own records. It would be also helpful to include the requirements of paragraph 281; this is particularly useful in instances where Entry Clearance Officers claim that insufficient documents were provided or where there is a refusal decision because certain documents were not provided with the application when they in actual fact were. Many British Embassies now delegate administrative work including applications and documents to local staff so administrative errors such as missing documents is becoming more common.
If the marriage visa is refused, you have the option to appeal the refusal decision within a Court in the UK. An Immigration Judge will decide whether the Entry Clearance Officer was correct or incorrect to refuse the visa and has the power to overturn the refusal decision to let the foreign spouse enter the UK. However, it could take about six months for a Court hearing date in the UK, so to avoid a possible refusal, it is very important that you put in as many documents as possible to convince the Entry Clearance Officer that a marriage visa should be granted.
It should be noted that refusals can also be based under paragraph 320 of the immigration rules which is where false representations have been made or false documents have been submitted (whether or not material to the application, whether or not to the applicant’s knowledge and irrespective of the applicant’s age or the category of visa sought), or material facts have not been disclosed. It is therefore very important that entry clearance application is completed totally, honestly and accurately so there can be no refusal under paragraph 320 which could result in a 10 year ban for the Applicant coming to the UK. If you are concerned that there could be issues in a case, legal advice should be sought.
Once in the UK
If your foreign spouse (and any dependants) are granted a visa it will initially be for a 2-year probationary period. They can then enter the UK and live with you. The foreign spouse (and any dependants) can work full-time, study, or enjoy the benefits of living in the UK. The spouse from abroad will be prevented from claiming welfare benefits during the probationary period. At the end of the two year period, your spouse (and any dependants) will be able to apply for indefinite leave to remain in the UK, on the basis that the marriage is continuing. Welfare benefits can be granted after indefinite leave to remain has been granted. After a further three years and assuming the spouse in the UK is British, the foreign spouse can apply for British citizenship. If during this period the marriage has broken down, then your foreign spouse may not apply for indefinite leave to remain on the basis of the marriage and would need to look at alternate options to regularise their legal stay in the UK.
Non-EU spouses of EU nationals
An EU national who wishes to bring their non-EU spouse to the UK can apply for an EEA Family Permit from the relevant British High Commission in the country where the non-EU spouse resides. An EEA family permit is issued for six months in all cases and is free of charge.
The requirements for issuing an EEA family permit are that:
“1. The applicant is the family member of the EEA national (marriage certificate, birth certificate or other evidence of family link)
2. The EEA national is residing in the UK in accordance with the EEA Regulations (as qualified person if more than 3 months) and the non-EEA national is joining them; or the EEA national intends to travel to the UK within six months and will have a right to reside under the Regulations on arrival, and the non-EEA national will be accompanying or joining the EEA national; and
3. If applying as a spouse or civil partner, there are no grounds to consider that the marriage or civil partnership is one of convenience and
4. If applying as dependent family members (dependent children 21 and over and dependent relatives) they are dependent on the EEA national or the EEA national’s spouse or civil partner; and
5. Neither the applicant nor the EEA national should be excluded from the UK on the grounds of public policy, public security or public health”.
Once in the UK, the non-EU spouse should make a further application to extend their legal status in the UK. For a non-EEA national family member of a person required to register under the Accession State Worker Registration Scheme, they should apply for a Family member residence stamp. For a non-EEA or non-Swiss national family members of EEA or Swiss nationals, they should apply for a Residence card. Both applications would need to be submitted to the Home Office in the UK and both applications are assessed free of charge.
Family members who come to the UK with an EEA or Swiss national, but who are not themselves nationals of an EEA country or Switzerland, can apply for a residence card (with some exceptions – see ‘Family member residence stamp’ below). The residence card confirms their right of residence under European law.
A residence card is normally valid for five years, and takes the form of an endorsement that is placed in the holder’s passport.
Family member residence stamps
Residence cards are not immediately available to all family members. Family members who are not themselves nationals of an EEA country or Switzerland, and who are in the UK with a national of Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia or Slovenia, cannot apply for a residence card until the national of that country has been employed continuously in the UK for 12 months.
Until this 12-month period is completed, a family member who is not an EEA or Swiss national can apply for a family member residence stamp.
After you have lived in the UK for a continuous period of five years, you can apply for confirmation of your permanent residence. You will need to have been in employment, self-employment, studying or self-sufficient in the UK throughout the five-year period.
For your residence in the UK to be considered continuous, you should not be absent from the UK for more than six months each year. However, longer absences for compulsory military service will not affect your residence. Additionally, a single absence of up to 12 months for important reasons such as pregnancy, childbirth, serious illness, study, vocational training or posting overseas will not affect your residence.
EEA and Swiss nationals will be issued with a document confirming that they are permanent residents in the UK. This document has no expiry date.
Non-EEA nationals will be issued with an endorsement, which is placed in their passport. This endorsement is valid for 10 years.
Written by Raheela Hussain, Principal Solicitor of Greenfields Solicitors.
Disclaimer: The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. For legal advice regarding your case, please contact Greenfields Solicitors on 020 8884 1166 for a Consultation with a Solicitor.