One of the most common situations we come across is a husband or wife wishing to sponsor their spouse from outside the UK. This can be in the Indian sub-continent but it can be anywhere in the world. We have had instructions for spouses in Europe, Canada, America and Africa.
The requirements to be satisfied by the applicant (the sponsor who is abroad) depend on the status of the sponsor (the spouse in the UK).
Applications supported by sponsors settled in the UKIf the sponsor is settled in the UK, that is, he/she is British or has indefinite leave to remain, then the rules require the applicant to satisfy various conditions. These include, showing that the sponsor is able to afford to maintain and accommodate the applicant. This should not be difficult to prove but surprisingly problems are encountered because the sponsor is unable to provide evidence of ability to maintain. This can be something as simple as failing to provide payslips for the full period of at least the 3 month period up to the date of the application. If the sponsor fails to provide bank statements showing the payment of wages going into the account, this can cause the ECO (entry clearance officer) to question the evidence.
Occasionally, there are situations where the sponsor is not in work. For example, we were instructed in a case where the sponsor was unable to work because of disability and was receiving State benefits. Nevertheless, on appeal, we were able to successfully rely on a job offer from a local employer for the applicant wife. So although the sponsor was on benefits, by virtue of the applicant having secured a job offer, she was able to show that the couple could maintain themselves without recourse to additional State benefits. This application succeeded because crucially the Tribunal was satisfied that the job offer for the applicant was genuine
Proof of accommodation should be in the form of a certificate from ideally the local council or a reputable estate agent. It is not sufficient just to provide proof of ownership or a tenancy agreement.
A crucial pitfall to avoid is the situation where the sponsor is going through divorce proceedings in the UK and decides to marry abroad. It is essential that the new marriage does not take place until the sponsor has received decree absolute in his divorce. There are cases where, for one reason or another, the new marriage takes place before the decree absolute and in such a case, a refusal will be inevitable.
If the various qualifying conditions are satisfied, a spouse visa of 2years duration will be given allowing the applicant to join the sponsoring spouse in the UK. Once the applicant has completed a period of 2years in the UK, he or she can apply for indefinite leave to remain.
Applications supported by European sponsors in the UKIf the sponsor is a European national, their foreign spouse cannot apply under the general immigration rules. He or she has to apply using a different set of rules contained in the EEA Regulations 2006. As in the first category discussed above, marriage must of course be proved. In most cases, nothing more than the marriage certificate is required but in one case, the marriage took place in Somalia over 20 years earlier and the marriage certificate was not available. This caused delay in the application as alternative evidence of the marriage was obtained.
The EEA Regulations put this category in a somewhat privileged position in that maintenance and accommodation is not an issue. Instead, the sponsor must prove that he/she is exercising Treaty Rights. This includes being in work or in self employment.
If successful, a Family Permit of 6 months duration is given allowing the applicant to join the spouse in the UK. This is then extended by applying for a Residence Card giving a further 5 years residence, after which an application for ILR can be made.
In all cases, original documents should be submitted in support of the application, although certified or notarised copies will suffice in certain instances, for example with the sponsor’s passport. All applications require the applicants’ photographs to be sent and these must comply with the strict guidelines to avoid the application being rejected.
How to make a successful application?As with most things, the key to success is good preparation. This involves paying close attention to the detailed requirements for the application concerned and to ensure that the application is correctly completed and accompanied by all required information and supporting documents.
By using this approach, we were successful in allowing a wife in Pakistan to join her husband in the UK after they had been separated for at least 3 years. During this time, she made 2 unsuccessful applications and her appeal against the refusal of both applications was rejected by the Tribunal even though she was assisted by her previous solicitors with both appeals.