The Upper Tribunal has once again addressed the concept of subsisting marriage – a notion with which immigration lawyers and judges have had some difficulties.
“Subsisting marriage” is one of the requirements of the immigration rules for the UK spouse visa. This requirement is contained in paragraph 281(iii) together with the requirement to demonstrate the intention to live together permanently as husband and wife.
Judges had often found the notion of “subsisting marriage” confusing, especially where parties had spent considerable time away from each other in different countries, either because of financial consideration or due to work commitments, family circumstances, etc. Mr Justice Blake understands subsisting marriage as synonymous with the intention to live together as husband and wife, thus simplifying for the applicant the task of accounting for the period of separation.
We hope this decision will bring clarity to the confusing notion and subsisting marriage will no longer be assessed retrospectively, as has often been the case with the harsher judiciary.
