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The ‘subjective’ element

The ‘subjective’ element

A new “subjective” element has been discovered and can be found in the Immigration Appeals Family Visitor Regulations 2012 (SI 2012/1532).

Watch out for this worrying little element as it has the potential to restrict the appeal rights of unmarried partners. The 2012 Regulations defines who is a “family member” for the purposes of Section 90 of the Nationality, Immigration and Asylum Act 2002 which, in turn, provides for when a visitor has a full right of appeal.

To be a “family member”, under the 2012 Regulations, not only do unmarried partners have to show that they have been in a relationship for two years prior to the application but they also have to show that this relationship is genuine and subsisting.  It remains unclear what evidence an Entry Clearance Officer (ECO) will be expecting, over and above the evidence that applicants provide to show that they have been in a relationship for two years but we have all had experience of the generalised refusals under the good old paragraph 281 which deployed, if not exactly the same wording, then certainly a similar meaning.

Paragraph 3 of Naz (subsisting marriage – standard of proof) Pakistan [2012] UKUT 00040 (IAC) may provide a clue of what to expect. The Entry Clearance Officer refused the application for the following reasons:

“It is reasonable to expect that in a genuine, subsisting, supporting and affectionate relationship…that there would be significant evidence of regular contact, signs of companionship, emotional support, affection, and abiding interest in each other’s welfare and wellbeing … I am not satisfied that you have genuinely formed a relationship and durable with outward signs of affection and companionship. You have therefore failed to demonstrate satisfactorily … that there is any affection and support between you. You have also failed to demonstrate that there is any substance to the marriage.”

Clearly the worrying aspect is the implications for the appeal rights of unmarried partners found not to be “family members”.  Any attempt to limit their right of appeal should be raised as a preliminary point in the notice of appeal and addressed clearly with reference to the visit visa application form and accompanying documents.

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