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Spouses and partners of British citizens or those with indefinite leave to remain can make an application for leave to enter or leave to remain and these applications will be dealt with under Appendix FM and Appendix FM(SE).  It is not always easy to follow the Rules as the paragraphs are not numbered but labelled and Rules refer to other Rules in different sections.  We hope to bring some clarity to the requirements by answering some of the most popular questions.

In order to make a valid application you need to use the correct application form and pay the application fee.  Applications also require payment of NHS surcharge.  The correct application form will depend on the case. A successful application under Appendix FM will generally result in a grant of leave to enter or remain. During this time, the person is allowed to work but cannot have access to public funds. An applicant can apply for indefinite leave to remain after five years in this category.  The exception is where an applicant is granted on the basis of “exceptional circumstances” in which case the application will be granted under the 10 years route.

For the application to be successful an applicant must meet certain requirements.  These are divided into suitability criteria and eligibility criteria. The suitability criteria will look at the applicant’s character, check if there are any reasons why he or she should not be admitted or allowed to remain in the UK. The eligibility criteria concern the relationship between the applicant and the sponsor, maintenance and accommodation including a requirement of knowledge of the English language.  Knowledge of English language must be demonstrated in applications for leave to enter or remain.

In addition, Appendix FM allows for situations where an applicant can apply for indefinite leave to remain before they have completed their five-year residence. These situations are if the sponsor died while the applicant has not yet completed the relevant five years or for those who have been victims of domestic violence.

What is a Spouse Visa?

This is a visa that allows an applicant to live together with their settled or British partner in the UK for up to 30 months.  It can be extended for another 30 months if the eligibility conditions are met.  Holding a partner visa for five years will lead to the grant of Indefinite Leave to Remain and eventually British citizenship.

What are the requirements for a Spouse Visa?

In order to make a successful application first and foremost:

  • If you wish to apply as a spouse you and your partner both need to be 18 years or over.
  • The couple have to be in a genuine and subsisting relationship;
  • Meet the minimum income threshold which is the financial requirements;
  • Demonstrate the knowledge of English language;
  • Provide evidence of suitable accommodation;
  • On some occasions pass a TB test, depending on their country of residence

Click here if you would like to apply as a spouse in order to obtain a visa to come to the UK.

What documentary evidence do you need to provide for a Spouse Visa?

  • You need to provide evidence that your marriage is recognised in the UK.
  • In addition, you must show that you satisfy the English language requirement and that you can financially support yourself and your dependent without recourse to public funds.

How long does it take to process a UK Spouse Visa?

Usually the Home Office informs that decisions on applications outside the UK will usually be made within 12 weeks and that if you apply in the UK a decision usually will be made within 8 weeks of the application date.  However, the UKVA have warned of delay in applicants receiving the decisions due to the pandemic.

How long can I stay if I come to the UK as a spouse?

At the end of this period you will be able to apply for a spouse visa extension. You will be able to stay for two and a half years as a spouse. At the end of this period you will be able to extend your stay.

What are the financial requirements for a UK spouse visa?

There is usually a financial requirement that the sponsor earns £18,600. There is a further requirement that you must earn an additional £3,800 for the first child and an additional £2,400 for any further children. The financial requirements under the family immigration rules often pose the greatest difficulties to prospective applicants. Accordingly, please do not hesitate to get in touch for expert advice if you require assistance in understanding these rules.

What counts towards the £18,600?

Usually the £18,600 will come from a spouse’s specified employment. In respect of salaried employment in the UK, the following evidence must be provided:

  • Wage slips for the past 6 months with one employer or the past 12 months with more than one employer;
  • A letter from the employers who issued the wage slips;
  • Personal bank statements corresponding to the same period as the wage slips.

Rental income can be included to make up £18,600. In order to rely on rental income you will have to provide:

  • Confirmation that your sponsor owns the property, either by a copy of the title deeds, the title register from the Land Registry or a mortgage statement;
  • Personal bank statements for the past 12 months showing that the rental income was paid into an account in the name of the sponsor;
  • A rental agreement/contract.

A pension can also count towards the £18,600. In order to rely on a pension, you will need to provide:

  • Official documentation from the Department for Work and Pensions (for the Basic State Pension and the Additional or Second State Pension);
  • Official documentation from a pension company, confirming pension entitlement and amount;
  • At least one personal bank statement in the last 12-months showing payment of the pension into the sponsor’s account.

Self-Employment

If your sponsor is a self-employed director of a limited company, you will need to demonstrate that he or she is indeed the director of the company and that the shares are held directly or indirectly by him or her. The following documents must be provided:

  • Tax Returns for the last financial year and evidence that this has been filed with HMRC. This evidence may take the form of an electronic or written acknowledgement from HMRC;
  • Evidence of registration with the register of companies at Companies House;
  • If the company is required to produce annual audited accounts, copies of such accounts;
  • If the company is not required to produce annual audited accounts, the latest unaudited accounts and an accountant’s certificate of confirmation. This must be issued by an accountant who is a member of a recognised UK supervisory body;
  •  Corporate/business bank statements for the last year and one of the following documents:
    • Certificate of VAT registration and the latest VAT return confirming the VAT registration number if the turnover of the company is in excess of £73,000;
    • Proof of ownership or a list of business premises;
    • proof of registration with HMRC as an employer for the purpose of PAYE and national insurance;
    • a PAYE reference number.
  • Where the person is listed as a director of a company and receives a salary from the company, all of the following documents must also be provided:
  • Pay slips and P60s covering the same period as Company Tax Returns CT600;
  • Personal bank statements covering the same 12-month period as the company Tax Returns CT600. The statements must show that the salary as a director was paid into an account in the name of the person.
  • Where the person receives dividends from the company, all of the following documents must also be provided:
    • Dividend vouchers for all dividends declared in favour of the person during or in respect of the period covered. In addition, you must provide the Company Tax Return CT600 showing the company’s and the person’s details with the person’s net dividend amount and tax credit;
    • Personal bank statement(s) showing that those dividends were paid into an account in the name of the sponsor.
  • Evidence of ongoing employment as a director of the company or of ongoing receipt of dividend income from the company.

Savings

There is no financial requirement of an income of £18,600 or above where the sponsor can satisfy a savings requirement.

This requirement is £16,000 plus 2.5 times the shortfall of the sponsor’s employment under £18,600. This means that if your sponsor is unemployed, he or she will need to show savings of £16,000 plus 2.5 times £18,600. This would be a total of £62,500. Therefore, the sponsor and the applicant will have to show savings totalling £62,500.

Knowledge of English

  • You will need to prove your knowledge of the English language when you apply.
  • You can prove it with academic qualifications or by taking a test.
  • You do not need to take an English language test if you are over the age of 65 or have a physical or mental condition which prevents you from taking it, or you are a national of a majority English speaking country.

Click here for more information about the English language requirement.

What are the Spouse Visa Accommodation Requirements?

An applicant must provide evidence that there is adequate accommodation available to them, which the family owns or occupies exclusively, without recourse to public funds. In order to assess adequacy, the accommodation must not be overcrowded or contravene public health regulations.

Click here for more information about overcrowding 

What are the Home Office and the NHS fees for a Spouse Visa?

If you apply from outside the UK the cost of a spouse visa is £1,523.  If you apply in the UK it is £1,033.   You will see below a table of fees, but please note that healthcare surcharges should also be paid as part of the application.  Additional costs of biometric appointments of £19.20 have to be paid if you are applying to extend or switch in the UK.  You can pay for a super priority service to get a faster decision.

Click here for more information

How do you apply for a Spouse Visa?

  • Your partner’s visa will last for a different amount of time depending on your circumstances. If you are applying from abroad the visa will last for 33 months.
  • If you are applying from the UK the visa will last for 30 months.
  • Before the visa runs out it can be renewed for another two years and six months. If you renew it you can apply for settled status after five years.
  • You can then apply as a spouse or as a partner for leave to remain for two years and six months. At the end of this you can apply to extend your leave to remain again for the same length of time. If you meet the requirements of these visas you can apply for settled status after five years in total.

The most common reason for applications being rejected is because insufficient evidence has been provided with the application. Our expert team at Danielle Cohen Solicitors is able to assist you in providing the right pieces of evidence to support your application.

How to apply from abroad?

If you need to apply for a family visa, the part of the Rules that need to be navigated are Appendix FM (FM stands for Family Members) and Appendix FNSE (specified evidence). In short:

  • A partner who does not live in the UK needs to apply for leave to enter;
  • A partner that lives in the UK will apply for leave to remain;
  • Someone who has had a partner visa for five years will apply for Indefinite Leave to Remain
  • Before you make the application you need to submit a valid application. The correct application form must be used. The right application fee must be paid and you must submit an original valid form of ID.
  • Applications also require payment of the NHS Surcharge unless applying for Indefinite Leave to Remain. The correct application form will depend on the case.
  • Applications from abroad must be filled online but it is also necessary to complete Appendix 2 which covers the financial requirements.

For UK applicants the most appropriate form is FLR(M) for Leave to Remain and SET(M) for Indefinite Leave to Remain.  Complete the online versions of both of these forms.

What are the mandatory Grounds for Refusal?

Before applying it is crucial to look at the Mandatory Grounds for Refusal.

  •  The main reason for an application being refused is criminality such as being the subject of a Deportation Order.
  • Other Mandatory Grounds not linked to criminal offences are for example the refusal to attend an interview if asked or to provide information and medical reports.
  • Finally, there are discretionary Grounds of Refusals which have to do with the application itself.  For example, failure to disclose material information or giving incorrect details.  The production of false documents will normally lead to refusal.
  • Mandatory and Discretionary Grounds for Refusal in settlement applications are very similar and it is usually best to seek legal advice if you think that any of the above applies to you.

What happens if my Spouse Visa application is refused?

  • If you are in the UK you can appeal against a refusal of a decision within 14 days from the date the decision was sent.
  • If you apply from abroad you have 28 days to appeal until you get your decision.

Can I apply if my partner and I are separated?

  • Your visa status could change when you separate or divorce and it is worth getting in touch with our expert legal advisers who can advise you about your individual circumstances.
  • You should also seek specialist advice if your partner is from a European economic area or if your partner is in the UK under the EA Regulations. One option under which you may be able to stay in the UK is under the parent route. Therefore, you might be eligible to remain in the UK after the breakdown of your relationship if you have children who live with you in the UK.
  • It might also be possible for you to get a work visa through your employer under the Tier 2 (General) visa route.
  •  Other ways of staying would be on the basis of the long residence route.

What is my remedy if I experience domestic violence?

  • You can stay in the UK if you are the partner of a British national, a settled person or a refugee and your relationship has broken down because of domestic abuse. As a spouse or as a civil partner your permission to remain in the UK depends on your relationship with your partner who is in the UK.
  • When the relationship ends the visa may be curtailed by the Home Office. It is very important that you explain your circumstances to the Home Office before your leave is curtailed.
  • The domestic violence rule applies if you are in the UK as a spouse or civil partner of someone who is British or who has indefinite leave to remain and you have suffered domestic violence. You can apply for indefinite leave to remain straight away. You can apply at any time during the probationary period i.e., the first two and a half years of your visa.
  • Any behaviour that is within the definition of domestic violence will satisfy the criteria; this includes violent and non-violent behaviour. You will have to explain when the relationship broke down with your sponsor (partner) and why.
  •  If you are thinking of applying for indefinite leave to remain under the domestic violence rule it is important that you obtain legal advice. We will be able to assist you to collect the evidence and to make your application.
  • The application form to use is SET(DV)  and the application fee for the domestic violence rule application is currently £2,297 for each person.

What is the evidence of domestic violence?

Any evidence of domestic violence can be submitted in support of the application. However, some evidence is more persuasive than others. The most useful evidence will be evidence that shows that you meet the criteria of domestic violence:

  1. A court conviction for an offence that fits within the definition of domestic violence
  2. A police caution for an offence that fits within the definition of domestic violence
  3. A letter from Social Services confirming their involvement with you because you have experienced domestic violence
  4. Letters in support or reports from domestic violence support organisations
  5. Medical reports from a hospital, doctor or GP who has examined you and can confirm that you have suffered injuries consistent with being a victim of domestic violence.
  6. Police reports confirming they have been called because of domestic violence.

If you do not have this evidence you can also provide other supporting evidence including testimonies from neighbours or friends who have witnessed the violence, or a report from a counsellor or psychologist.

What if my partner is an EEA National?

As a partner of an EU national you can apply under the EU Settlement Scheme but:

The UK left the EU on 1st January 2020.  It negotiated a deal called EU-UK Withdrawal Agreement, and this agreement provided for an extension of all EU law until 31st December 2020 in order to give the UK time to negotiate itself properly out of the EU and on 31st December 2020 EU free movement law ends.

The Withdrawal Agreement provides a buffer to prevent European citizens finding themselves suddenly and abruptly without EU free movement law and therefore there are a further six additional months called “the Grace Period” to allow European citizens and their family members to protect their lawful UK residence status using the EU Settlement Scheme.

During this Grace Period those who have not yet applied to the EU Settlement Scheme may have their existing rights carried over until 30th June 2021.  We strongly advise that your EU partner applies for the EU Settlement Scheme as soon as possible and an application for Pre-Settled or Settled Status for EU nationals may take days to be decided.

It is important to note that Europeans who marry a non-EU national by 31st December 2020, will be entitled to remain in the UK without much difficulty.  However, for those who wish to move to the UK with their partners from 2021 onwards it will be more difficult if the EU national only has Pre-Settled Status.

Under the EU/UK Withdrawal Agreement EU citizens who relocate to the UK and marry a non EU national by 31st December will be entitled to stay in the country on the same terms as under the citizenship directive.  By contrast, those who meet or marry their partner after that date will need to comply with UK domestic family provisions such as minimum income requirements etc.

Click here for more information.

Danielle invites you to take a look at her blog, where you will see the diverse range of clients that she has helped.

If you have any questions about the process or would like to apply for Appendix FM Visa please contact Danielle or call on 020 7267 4133. Danielle will only charge you for the first consultation if you decide to become her client and if she can assist you.

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