Family Visas

The harsh reality of family applications in the UK by Charlotte Rubin

Appendix FM of the immigration rules sets out the rules for non-EU citizens who want to come and join previously settled family members in the UK. Those eligible to apply for family visas under Appendix FM are non-EEA nationals related to or in a relationship with either a British citizen, a person settled in the UK with indefinite leave to remain, or a person in the UK with limited leave as a refugee or someone granted humanitarian protection.

The Appendix states that it aims to “strike a balance between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic well-being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others.”

In practice, striking the “balance” between what is essentially an inalienable human right under Article 8 of the European Convention of Human Rights and national or domestic conditions of life has led to strict rules and requirements for applicants trying to join their family.

Basic requirements for eligibility depend on the applicant’s relationship to the family member they are trying to join in the UK, and are often related to age, knowledge of English and self-sufficiency. More complicated, and often problematic, is the Minimum Income Requirement (MIR), which was introduced together with the 2012 hostile environment rules by then Home Secretary Theresa May. Under the Minimum Income requirement, the British or settled family member who wants to reunite with their non-EEA national family member has to prove that they can financially support themselves, the family member, and any dependent children where applicable.

Concretely, the British or settled sponsor needs to show a proof of income of £18,600, with an increase of £3,800 where they are applying with one dependent child, and an extra £2,400 for each additional child after that. This is in addition to the cost of the Home Office visa application process and English Language test fees which applicants have to incur independently, and which are amongst the highest in the world.

Bearing in mind that 40% of workers in the UK do not reach this threshold, the minimum income requirement has often been criticised as unduly harsh on family units. Today, at least 15,000 children are growing up without one of their parents, just because their family doesn't earn enough to meet these strict Home Office income rules.

The Appendix is also the framework under which a British or settled person can bring their spouse or partner into the UK. For partner applications, additional non-financial requirements, which are not required for blood-related family members, can be tricky. Primarily, the requirement to prove that the relationship is “genuine and subsisting” can be hard to fulfil, and often is at the base of reasons given for refused applications.

Granted, Appendix FM makes provision for “exceptional circumstances” under which an applicant may be relieved of the Minimum Income Threshold, or where the Home Office will approach “genuineness” of the relationship with more flexibility. For the MIR, examples include if a strict application of the rules will result in unjustifiably harsh consequences, and thereby render refusal of entry clearance or leave to remain a breach of Article 8. In those scenarios, the Home Office will not only take other income sources such as cash savings into account to see if an applicant can reach the threshold alternatively, but they may also exercise discretion in granting the family visa if the money is not readily available. Unsurprisingly, the threshold to qualify for these “exceptional circumstances” is extremely high, and the execution is at the Home Office’s mercy.

Not only is there no motive – political, economical or humanitarian - that justifies the minimum income threshold, it has also still not been proven that the hostile environment policy works at all. As Reunite Families UK, a charity fighting the unfairness of the minimum income requirement, writes in their open letter to the PM the COVID-19 pandemic has exacerbated the policy’s harmful effects, and the upcoming recession will only make things worse. Write to your MP today to fix this broken system, and reunite families that have been teared up for years for no other reason than purely financial distress.

You can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp if you need help reuniting your family.

Briefing: Does Your Relationship satisfy the Home Office “Genuine and Subsisting” test? by Charlotte Rubin

It is no secret that many couples and immigration practitioners have long been growing frustrated with the requirements to evidence family relationships when applying for a family visa in the UK. Every year, a significant amount of family applications are rejected on the basis of the applicant not providing the adequate documents to evidence relationship requirements.

For Spouse visas, the Home Office guidance states, “an applicant and their partner must provide evidence that they are in a genuine and subsisting relationship.” This is to avoid marriages of convenience or “sham marriages.” But what is a “genuine and subsisting” relationship and worse yet, how does one prove it?

Appendix FM-SE of the immigration rules deals with evidencing all the requirements set out for family visas in the UK. For married couples, it specifies that a marriage certificate is a mandatory requirement to prove the marriage. This is confirmed in the the Home Office guidance on family relationships for partners, divorce and civil partnerships. Unfortunately, neither the Appendix or the guidance specify what evidence is needed to satisfy the “genuine relationship” test.

Since the criterium is vaguely worded, and there is little clear guidance on the subject, it is only logical that applicants often do not realise how much evidence they are expected to present to fulfil the requirement. As a general rule, it is up to the person filling in the application form and, in this case, relying on the existence of a relationship, to prove any assertion made about it. The caseworker who looks at the application will not do their own investigatory work on an applicant’s behalf.

Unsurprisingly, when spouse visa applications get refused, lack of a “genuine and subsisting relationship” is therefore often cited as the reason for refusal. Almost always, the refusal does not mean that the relationship is not genuine, but rather that the applicant failed to give adequate or enough information (in the view of the deciding caseworker) to prove that it was genuine. This is a subjective factor, which depends on the caseworker reading your application. That is why the general advice is to prepare all your immigration applications for the most cynical caseworker on a bad day, to ensure that any caseworker who reads it will view it favorably.

So, what are examples of good evidence? Some of them are obvious – children or stepchildren for which both partners have cared, for example, are an example of strong evidence of a subsisting relationship. If a couple has been living together for a while, the requirement can be relatively easy to fulfil. Joint tenancy agreements, joint bills or mortgage deeds are good examples of proof the Home Office would most likely accept as evidence of the relationship. Any other correspondence, especially from government departments or local government, sent to the applicant at the same address as their partner would also get the applicant brownie points.

Home Office guidance specifies that cultural and external factors must be taken into account when evaluating the genuineness of a relationship. If for cultural or religious reasons, the applicant couple did not live together before they got married, for example, or did not know each other very well, that should not mean that their relationship does not satisfy the requirement.

Thus, if a couple has been living apart for a lengthy period of time, or have never lived together before making the application, the situation might be a bit more complicated, and the evidence needed a bit more creative. Good examples of evidence include joint holiday bookings, visits to each other’s home countries, shared financial responsibilities (e.g. bank accounts, savings, utility bills, membership accounts, …), and plans for the future in the UK (think accommodation, finances, etc.) Witness statements from the couple, their family members or neighbours can also be useful.

As ever, this briefing this is not a substitute for legal advice. Fulfilling the “genuine and subsisting relationship” requirement for the purposes of a UK spouse visa application can be one of the most challenging aspects of the process.

Couples who have received a refusal on such grounds could benefit from legal advice to strengthen their evidence in order to submit a subsequent successful application. If you would like an experienced immigration lawyer to talk about your specific application, you can book our one-off video consultation service here. If you have a question about this service you can contact us here or send us a question on WhatsApp.

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