UK spouse visa rules: unfair and discriminatory

Long gone are the times when spouses of British citizens were admitted freely to the UK or given life-long right of abode. Gone are the times when the spouse of a British citizen had to pass through a probation period of two years before applying for indefinite leave to remain. From July 2012 rules have become complicated, particularly for some groups of migrants, or rather for some categories of British citizens who have the whim of marrying a non-Brit.

And if you think that whims are the prerogative of the wealthy, you are only partly right.

Part of the complexity of the system is the Delphic nature of the new rules. It is incomprehensible to the extent that entry clearance officers around the world no longer have competence to process spouse visa applications which are now forwarded to Britain from all over the world.  A handful of specially trained staff plough through the various categories of salaried and non-salaried income in combination with income from other admissible and inadmissible sources confirmed by “specified evidence” presented in the right format of original documents – and not surprisingly they often get it wrong.

Also not surprisingly, some circumstances simply do not fit into the non-so-carefully created boxes.

Since income of the non-British spouse is taken into account in a very restrictive way, British women expats are particularly disadvantaged in their attempts to bring their partners to the UK, particularly if they have been off work for child care and rely on the earnings of the non-British partner. For example, a British woman who has lived abroad with her non-British partner and decides to return to the UK for child birth or shortly after the child is born, needs to demonstrate that she is employed at the date of her partner’s application for entry clearance, had a job in the UK immediately before expatriation, and has a job offer in the UK on return with a start date within three months of return.

Alternatively, the couple have to rely on cash savings in the amount of not less than £62,500 kept in cash in a bank account for not less than six months. If the capital comes from the sale of property the requirement remains the same. The cash has to brew in a bank account, not tied to any bonds or obligations, for six months prior to the application for entry clearance.

And of course the spouse has to know English.  Initially to A1 standard – which is not very hard if there is a local school to make the required assessment.

From October 2013 those who apply for indefinite leave to remain will have to demonstrate a higher level of English – to B1 standard – in addition to the Knowledge of Life in the UK.

Those who have entry clearance as the spouse will need to extend their leave to remain after two and half years of residence and will qualify to apply for indefinite leave to remain after five.  They will have to meet the requirements all over again, but now income of the non-British partner can also be taken into the calculation. And those who do not meet the requirements will be sifted through the scanty Human Rights provisions in the immigration rules contained in the only “Exception” to the formidable Appendix FM entitled EX.1.

The exception provides for the rights of non-British parents of British children to remain in the UK where departure of the parent would entail departure of the British child. And with the deepest insight into best interests of children, the rules provide that where the child has a British parent in addition to the non-British parent and these parents are not separated and have not divided their responsibilities for the child, the British parent should suffice and any prejudice to the child’s upbringing will be justified by the needs of the society as a whole. Split-up families have the mercy of the new rules, but indefinite leave to remain will only become an option after ten years of residence.

If you find these rules complicated, contact immigration solicitors for legal advice.