Spouse applications and appeals

Free Movement — 

I’ve just been doing the appeal on a not-terribly-well-prepared spouse case. It was a frustrating experience as the appeal may fail, although the case might potentially have been a strong one. It is difficult to tell where the fault lies for the problems in the preparation of the case, however. It could be the solicitor but it might be that the client has simply failed to provide evidence for which he was asked.

The applicant was the wife of a man based in the UK. He was originally a refugee but is now a British citizen, having naturalised a few years ago. The UK-based partner is referred to as the sponsor in these sorts of cases.

As in many spouse cases, the main issues were (i) whether the relationship was genuine and (ii) whether the applicant would be adequately maintained and accommodated without recourse to public funds once inside the UK. I’ll address the first issue in this post and return to the other in the future.

When an Entry Clearance Officer, sometimes colloquially referred to as an ECO or as a visa officer, has doubts about whether a relationship is genuine, there are two immigration rules he or she can and usually will rely on to refuse the application. These are the requirements that the marriage is subsisting and that the parties to the marriage intend to live permanently with one another, both set out at rule 281 of the immigration rules.

Case law says that the subsisting marriage requirement means more than just legally subsisting, the marriage has to be an ongoing, ‘live’ one. It is therefore important to show that the two parties are regularly in contact, whether that is by telephone, text message, correspondence, email or pigeon. Phone bills (preferably with proof of to whom the telephone numbers belong), print outs from telephone cards (or the cards themselves, although they could belong to anyone in the mind of a cynical ECO), copies of letters and envelopes (envelopes prove someone hasn’t just sat down one night to write a load of letters), birthday cards, pigeon feed bills and so on are invaluable evidence. A witness statement or letter to the ECO explaining how often the couple are in contact, what sorts of things they talk about and a few anecdotes about recent calls can be very helpful as it humanises the whole thing, which is half the battle with most ECOs and immigration judges. Evidence of visits is very helpful, including passport stamps, photos and then any other evidence of activities together, such as restaurant receipts, cinema tickets, hotel bills and so on.

Oh, a child or pregnacy can help, too. And the length of time between the refusal of applications and the listing of the appeal against refusal means that a child is sometimes on the way by the time of the appeal hearing, with one parent in one country and the other in another. Not much chance of attending antenatal classes together.

Evidence of financial support by the UK sponsor is also important if there has been any. This can be quite tricky, as the high commission on the likes of Western Union and the relatively small amounts that are transferred make that method of transfer quite unappealing. Bank transfers are difficult as many potential recipients don’t have bank accounts. Many people send money with friends or relatives who are going abroad, but providing evidence can be very hard. A letter and copy of relevant passport stamps showing travel to the country in question from the person or people concerned is usually the best that can be done.

All of this also helps with the ‘intention to live permanently with the other’ test. However, even if the couple can show all this evidence, an ECO can still turn around and effectively accuse both parties of entering into a sophisticated sham marriage (see the film Green Card) or, more commonly, accuse the applicant from abroad of deceiving the UK sponsor in order to secure entry to the UK. This is, I am sorry to say, far more common as a reason for refusal where it is a man applying to come to the UK and/or where the man is the younger of the two spouses. ECOs can be rather old fashioned in this respect, as in so many others.

Lastly, and this was one of the frustrations about the case I was recently handling, if an appeal is necessary then the date of the assessment of the facts at the appeal is the date of the original refusal. This means that evidence arising after the original refusal is unlikely to be relevant, unless it clearly casts light on the facts at the time of the refusal. For example, evidence of a strong ongoing relationship (lawyers sometimes refer to this as ‘intervening love and devotion’, as if we’d know about that) strongly suggests that the relationship was genuine all along. However, getting a new job with more money won’t help show that there was enough money in the household at the time of the refusal.

The burden of proof rests with the applicant. Failing to produce this sort of evidence means that it is very difficult to win a case. In this case, the corroborrating evidence of contact simply wasn’t there.

Free Movement

Free Movement

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

14 responses to Spouse applications and appeals

  1. Well, good luck with it, anyway, and I’m sorry you’ve had to wait so long. Sadly, it isn’t unusual.

  2. Hi Emma,
    i totally understand how you feel. i have been in the same boat and have not seen my husband in 10 months although i went to visit him twice in India. Our first interveiw was refused visa on the babsis that they didnt beleive our love was genuine. The solicitor that we first had, advised us that it was essential for me to be at the interveiw and also didnt advise us that we needed evidence of us being a couple. However, when we applied for the second interveiw i gathered a lot of evidence. At the same time i was very hurt as i had to proove to people that didnt even know us how much me and my hubby loved each other. In the interveiw, we had 2 big wedding albums, love letters of when we were dating, house morgage papers, phone cards, emails, our wedding invitataion card, letters from friends and family that know us and how we are as a couple, photographs from when we were dating, marriage certificate, travel tickets to India to show that i went to visit my hubby, letter from my work to say i have a permanent job… and in the end i was never even asked to come into the interveiw, instead i sat outside for 10-15 and when my hubby started showing evidence to back up whatever question he was asked, they didnt wana see any of the evidence as they said “yeah we now beleive your marriage is genuine”. I struggled to get all that information, i had so much photocopied mobile bills with both our numbers hi lighted(this took me ages), i had to print out all the emails that we sent to eachother and again this took ages… How would they feel if we asked them to proove to us how much they love there wife or husband.
    Emma and everyone one else in the same boat, i hope we never have to suffer this kind of horrible pain again in our life, i would never want anyone to feel what we have suffered

  3. Hi Freemont.
    The Re entry ban on illegal immigrants,I would like to know when does the ban comes into effect,is it from the moment an illegal immigrant is removed or does it start from the day the law was introduced,Have been removed from the UK since 3 yrs ago and am about getting married to my british girlfriend next month,Do i have 2 years left or i have to start counting another 5 years from now.

  4. Hello all,
    I would really appreciate some advice about what to do. I first came into the with my parents on a visitor’s visa, at this time i was 12 years of age. Then i became my father’s dependant who was under student visa, this was then refused in July 2003.
    So the solicitor that we got advise from, told us to do the following:
    He then applied for a British Overseas Citizen, which was granted and refused when he wanted to register as British citizen. He then appealed against the refusal which was dismissed.
    Then he applied for ILR in 2005 for himself, me and my mother, this again was refused. I was told to apply independently as i was over the age of 18 by the time the application reached the home office.
    So when i applied, i was refused because of not completing the 10 year time period, (8 & half year). This was then appealed on human rights grounds and was dismissed by the judge in 2007.
    All this while i did not know any of the immigration matters that has been going on, as my parents never acknowledged any of these problems until we went to the tribunal. I was also sent IS 151B and this was appealed and was sent a IS 151A, I am very confused just don’t know what to do now. SO PLEASE HELP…..looks like I am in MESS!!!!!!
    Now that I am 22 years of age and have completed nearly all of my education in the UK would like to move on have a life of my own. In the mean time, I have found the man of my life and have decided to get married.
    We had an engagement ceremony in recently, and the wedding has also been fixed for December this year.
    My fiancé is an Indian national who is working in UK on a HSMP tier 1 visa. I also have all my family settled here and i have no one in my home country.
    Does the 1st October rule apply to me? Or will i be banned for sometime?
    APPRICIATE SOME HELP AND ADVICE……
    Many Thanks

  5. Dhasha, you have a very complex case and need to see a good immigration lawyer about it. Some cases recently came out in the House of Lords (I did a quick post about them in June) that might also help you. I can’t give advice directly to you, though, I am afraid, because of my professional rules as a barrister.

  6. freemovement 5 July 2009 at 4:55 pm

    Sorry Amir, but I can’t give advice on individual cases here. I’m glad you have found the website helpful, though. I’d advise you to get good quality legal advice. DLA can count towards maintenance, which can be very helpful to the disabled.

  7. hi

    i got question about re-entry ban paragraph 320 7b

    i came in 2003 via hethrow,i hav’t had transit visa dat time,so immigration office took my passport and they take my finger print and gave me 8 hour’s to go out and come back.
    i breech law,i never go back.my partner got a T1 visa she can apply for indefinate after 2 and half year.now i want go back my home country INDIA and want come back legally.

    i read in above paragraph 320 7b its not apply if i apply as a spouse.iam confuse what i have to do now.becouse i got good settled business here .and if i go back and ban apply’s on me then its gona takes too long to come back,and i dont wana loose my business and my partner,please give me good advice.i feel iam in big MESS!!!.i knw i made this mess for my self :( looking positive answer from you.thanks in advance

    • Get a good lawyer. Good lawyers usually cost good money.

    • i dont care about money,i already consult with few lawyer’s,but no one is sure re-entry ban going to apply on me or not.i just wana hear its going to apply on me or not,reat if not,then i dont wana waste my time,i wana go strait way to india and come back legally in queue.

  8. Hi,

    It was intresting to read the case back in june 2007 re spouse refusal. I’m in situation right now were my husband has been refused settlement visa. I did not write a cover letter with my husbands application which would have covred the very petty questionings they had which lead to reusal. During the time I was pregnant with my daughter, she has since been born and we have done dna test as proof that she is my husbands child. My solictor thinks that this proof will be strong enought evidence for eco to change the discision.

    In the case june 2007 you state that it helps if there is a child or pregnancy. Can you tell me under what law or human right act does this state this or why it helps a case like mine.

    I just need piece of mine and another opinion. We are still waiting for a decision the bundle date is 11th December 09

    Thank you

  9. hi,
    just to say im kind of new to all this-even though i was born here, it`s like living in a UK that i don`t even recognise-those awful detention centres and their procedures.. i never even knew they existed.

    i can hardly believe my own ignorance, but i actually thought previously that everybody who wanted to enter the UK did. and all those who wanted to leave,i thought they just left. no in between, so to speak.
    must have previously been walking around blinkered or something.

    anyway, I just wanted to say a very quick thanks to you-this site is the only place ive been able to find out what the difference between removal and deportation is-and ive asked that question a lot recently!

    those advisory organisations who are supposed to be ‘helpful'; Wherever I`ve telephoned for information or advice, the minute you mention deportation / solicitor / removal, in the same sentence, they either can`t help, or they won`t help or the phone goes down…. you get the picture.

    saying all that tho, im quite happy to leave this country-anywhere`s better than here!
    -)

    so yes,it`s a really great site
    Bravo! to you and thanks again.

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