Upper Tribunal relaxes restrictions in favour of Spouses

The Upper Tribunal’s recent decision to grant a couple permission to challenge the Home Office’s decision by way of a Judicial Review in the case of R (on the application of Bhudia) v Secretary of State for the Home Department (para 284(iv) and (ix)) IJR [2016] UKUT 25 (IAC), is good news for future applicants as it sheds further light on some of the complex and often restrictive immigration requirements that applicants have to satisfy when making an application for a UK Visa as the spouse of a British national. 

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The Facts

The Applicant was an Indian national and she was granted entry clearance to the UK as the spouse of a British national. In 2014, the Applicant made an application for further leave to remain in the same capacity. The Home Office refused this application and the Applicant sought to challenge this decision by way of Judicial Review.

The Home Office Decision

The Home Office refused the Applicant’s application for leave to remain as a spouse for three main reasons;

The Applicant’s leave expired on 15 May 2014 and she submitted her application for extension on 30 May 2014.  The Applicant argued that she had a 28 days grace period within which to make the extension of stay application in accordance with Paragraph 284 of the Immigration Rules which states that;

The requirements for an extension of stay as the spouse or civil partner of a person present and settled in the United Kingdom are that ……….(iv) The applicant has not remained in breach of the immigration laws, disregarding any period of overstaying for a period of 28 days or less ….

The Home Office disagreed with the above and came to the conclusion that the Applicant had become an overstayer and as such did not meet the requirements because she did not have valid leave to remain at the time of applying;

Secondly, the Applicant had failed to provide six items of correspondence addressed to her and her husband at the same address to show they had been living together in the two years preceding the application. The Home Office argued that this was a valid reason to refuse the application because the Applicant had failed to show that she was in a genuine and subsisting marriage. It should be noted that The Upper tribunal in its decision considered that this requirement is not specified in the immigration rules, rather it is derived from the extension application form, FLR(M) Application Form and as such should not be a determinative factor when considering an application.

The third of the reasons offered for refusing the Applicant’s application was that evidence of the requisite English Language qualification had not been provided. The Applicant’s reason for not providing an English  language test certificate was that it would have been on the Home Office’s records with her previous application for entry clearance as a spouse, therefore she did not think that she would need to provide it again with her new application and further that the previous certificate she had provided did not have an expiry date.

The Home Office was however not of the same view and in its decision to refuse the application, stated that the Applicant had not provided evidence that she met the English Language requirement. The Upper Tribunal concluded that evidence of meeting the English Language test has previously been accepted and therefore this requirement was satisfied. ​

The Upper Tribunal’s Decision

The Upper Tribunal granted the Applicant permission to challenge the decision by way of Judicial review stating that;

(i) The correct construction of paragraph 284(iv) of the Immigration Rules is that the applicant has a period of 28 days within which to make an extension of stay application, measured from the date immediately following the last day of leave in the United Kingdom.

(ii) The purported requirement in Form FLR(M) that an application for further leave to remain in the United Kingdom as a spouse be supported by certain correspondence in specified terms is unlawful.

(iii) The requirement previously enshrined in paragraph 284(ix)(a) of the Immigration Rules that an applicant provide an English Language test certificate in specified terms is satisfied where the applicant has already provided a certificate of this kind to the Secretary of State which has been accepted as valid.

(iv) The jurisdiction of the Upper Tribunal in judicial review proceedings to determine any of the issues raised is not extinguished by the Secretary of State’s withdrawal of the decision under challenge: R v Secretary of State for the Home Department, ex parte Salem[1999] AC 450 applied.

Immigration Advice for UK Spouse Visa

Our expert Solicitors at LexLaw have a 100% success rate in UK relationship based applications and treats each case individually, providing detailed assessments to our clients. Our detailed consultations are to ensure that you are eligible to make a Spouse visa application. If you decide to instruct us we will provide you with a bespoke documents list tailored to your circumstances.

Our city of London solicitors will guide you through the financial, language and relationship requirements in accordance with the UK Immigration Rules. Making the process as easy as possible and working hard to get a successful result.

Are you Eligible for a UK Spouse Visa under the Immigration Rules?

Our team of experienced and professionally qualified immigration solicitors and barristers will be able to go through the Home Office’s requirements with you. As well as, the process of making a visa application to the UK step by step and limit the possibility of failure by complying with the strict letter of law. Contact us so that we can review your case and provide you with an assessment.

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