In October 2013, the case of Gulshan (Article 8-new Rules-correct approach)[2013 UKUT 640] (IAC) was heard in the Upper Tribunal (Immigration and Asylum Chamber) (published on 17 December 2013). This was an appeal by the Secretary of State against a previous decision in which it had been held that it was disproportionate and unlawful under Article 8 of the European Convention on Human Rights (ECHR) to remove the Appellant to her home country. In the new decision, the Upper Tribunal set aside the determination of the First Tier Tribunal and dismissed the appeal against the Secretary of State’s refusal to vary leave to remain.
Gulshan: Facts of the Case
In this case, Mrs Gulshan was born in Karachi, Pakistan and was married to her husband who was a British citizen. They have two daughters together (who both live with their husbands in Pakistan) and a son who lives in the UK. Mrs Gulshan’s husband was granted Indefinite Leave to Remain in 2006 and after working for some time retired and is now in receipt of a state pension. In September 2012, Mrs Gulshan made an application for leave to remain as a spouse of a person present and settled here which was subsequently refused by the Secretary of State as firstly, she did not have the requisite immigration status, secondly she did not meet the minimum income requirements (financial requirements) and thirdly that she had failed to provide an English language certificate.
Gulshan: Upper Tribunal (Immigration & Asylum Chamber) Determination
Whilst on this occasion the decision of the First Tier Tribunal was set aside, Mr Justice Cranston (Judge of the Upper Tribunal) asserted the court’s approach as follows:
- The maintenance requirements (financial requirements) stand, although Blake J in R (on the application of MM) v Secretary of State for the Home Department [2013] EWHC 1900 (Admin) said that they could constitute an unjustified and disproportionate interference with the ability of spouses to live together; he suggested that an appropriate figure may be around £13,400 and highlighted the position of young people and low wage earners caught by the higher figure in the rules;
- After applying the requirements of the Rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them: R (on the application of) Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin);
- The term “insurmountable obstacles” are not obstacles which are impossible to surmount: MF (Article 8 – new rules) Nigeria [2012]UKUT 393 (IAC); Izuazu (Article 8 – new rules) [2013] UKUT 45 (IAC); they concern the practical possibilities of relocation. In the absence of such insurmountable obstacles, it is necessary to show other non-standard and particular features demonstrating that removal will be unjustifiably harsh.
Are you affected by the ‘Financial Requirement’?
The Home Office’s rules on financial requirements affect non-European Economic Area (non-EEA) nationals applying to enter or remain in the UK under the family migration route. The rules define the basis on which a person can enter or remain in the UK on the basis of their family or private life. If you intend to make an application as the spouse, partner, fiance(e) or proposed civil partner of a British citizen, you and your sponsor will need to meet the financial requirements.
If you would like to discuss how the financial requirement may affect you, please contact us today and our London immigration solicitor’s will be able to assist you by meeting with you and reviewing your case.