Spouse Visa Refusals and Appeal
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
In order to understand the background to refusals of spouse visa, one has to re-visit the leading cases of Ali and Bibi in 2015. In these cases the Supreme Court dismissed the challenge brought against the introduction of a pre-entry English language test for spouses seeking to enter the UK as family members of British citizens and those present and settled in the UK. The appellants in these cases challenged the amendments to the Immigration Rules which came into force in 2010 and which required an overseas spouse or a partner to pass a test of competency in the English language before being able to live in the UK.
The Government objective to introducing the pre-entry English requirement for spouses and partners was to assist those to integrate into British society at an earlier stage and to improve employment chances for those who wish to work in the UK. The Supreme Court judgement unanimously dismissed the appeal saying that the rule does not infringe Article 8, the right to private and family life, and accepted that the objectives of the Rules were intended to protect the interests of the economic well-being of the country and assist spouses or partner’s integration into British society at an earlier stage.
Next came the case of MM on the spouse minimum income threshold. The case of MM (Lebanon) judgement concerned applications which failed to meet the minimum income Rules for entry clearance or leave to remain as a partner or child under Appendix FM. The Supreme Court upheld the principle of minimum income rule which requires an income of at least £18,600 for British citizens and settled individuals to sponsor a foreign spouse. In light of this case, however, on 20th July 2017 the Home Office published changes to the Immigration Rules and it allows applicants who prove that there are exceptional circumstances which will render the refusal of the application a breach of Article 8 (because it could result in unjustifiably harsh consequences for the applicant, the partner or a child under the age of 18 years), to rely on other sources of income.
What are unjustifiably harsh consequences in the context of this case?
The Home Office guidance defines it as “ones which involve a harsh outcome(s) for the applicant or their family which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others.”
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