Read latest updates:
MAY 2010. If you are married to a foreign person and you are settled in the UK and want to bring your spouse over to the UK, your spouse will need to make an application to the British Embassy to apply for entry clearance to enter the UK as the spouse of a British citizen or a person who has indefinite leave to remain.
The foreign person applying for entry clearance is called an “Applicant” and the settled spouse in the UK is called a “Sponsor”.
The relevant immigration rules for the foreign spouse to satisfy when applying for the visa are contained under paragraph 281 of the immigration rules and are as follows:
“281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:
(i) (a) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; or
__(b)(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and
__(b)(ii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application; and
(ii) the parties to the marriage or civil partnership have met; and
(iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and
(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity”
It should be noted that certain countries request the application to be completed online as they will not accept hand delivered applications any longer- it is important you check this in advance with the relevant British Embassy.
What documents should be submitted?
Your foreign spouse will have to submit a substantial amount of documents to support their application for the spouse visa to the British Embassy. These documents should include your:
1. Marriage certificate
2. Photographs of you and your spouse together, over period of time including any recent photographs and the wedding ceremony photographs
3. Evidence for you and your spouse communicating such as itemised phone bill/e-mails/love cards for the past 3-6 months
4. Sponsor’s bank statements/savings accounts for at least 3 months (preferably 6 months)
5. Sponsor’s payslips for the past 3 months (preferably 6 months)
6. Sponsor’s employment contract
7. Sponsor’s tenancy agreement/most recent mortgage statement
8. Photographs of the accommodation where you both will live
9. Independent property inspection report to confirm there will be no overcrowding
10. Letters of support from mutual friends and family of the couple confirming the nature of their relationship
11. Birth certificates of any children
12. Divorce certificates/ Decree Absolute showing you/your spouse was free to marry and that your marriage is valid
It must be remembered that most of the documents will need to be provided by the Sponsor. The Entry Clearance Officer may then want to interview the foreign spouse before deciding whether they should be granted a visa. The Entry Clearance Officer will look at the following:
a. Whether there is a genuine and subsisting marriage
b. Whether there is sufficient accommodation in the UK without the need for the UK based spouse the have to claim additional welfare benefits for the foreign spouse that is joining them
c. Whether there is sufficient financial maintenance in the UK without the need for the UK based spouse to have to claim additional welfare benefits for the foreign spouse that is joining them
Where the UK based spouse claims welfare benefits, they can still apply for their foreign spouse to enter the UK but they will need to convince the Entry Clearance Officer that additional recourse to public funds will not made if their foreign spouse joins them in the UK. This can be quite difficult as the Entry Clearance Officer will analyse the Sponsor’s income and outgoings and calculate whether there is enough monthly disposable income to support the Applicant is granted entry clearance for settlement. Any potential job offers available to the UK once in the UK is a good way of convincing the Entry Clearance Officer of this as well as evidence of their savings/assets.
It is also important to note that the Entry Clearance Officer will look at the accommodation which the married parties will occupy in the UK. It is acceptable for accommodation to be shared with other members of the family so long as there is a bedroom for the exclusive use of the married parties and there are no issues of overcrowding.
What are the main reasons for the visa to be refused?
In practice, Entry Clearance Officers mostly refuse marriage visa for two main reasons. Firstly, that they do not believe the marriage is genuine and subsisting and secondly, because they do not believe the spouse in the UK has sufficient monetary funds to maintain the Applicant.
It is always a good idea to include a cover letter with your application, listing all the documents you are submitting as well keeping a photocopy of the application and documents you submit for your own records. It would be also helpful to include the requirements of paragraph 281; this is particularly useful in instances where Entry Clearance Officers claim that insufficient documents were provided or where there is a refusal decision because certain documents were not provided with the application when they in actual fact were. Many British Embassies now delegate administrative work such as including applications and documents to local staff so administrative errors such as missing documents is becoming more common.
If the marriage visa is refused, you have the option to appeal the refusal decision within a Court in the UK. An Immigration Judge will decide whether the Entry Clearance Officer was correct or incorrect to refuse the visa and has the power to overturn the refusal decision to let the foreign spouse enter the UK. However, it could take between 6-8 months for a Court hearing date in the UK, so to avoid a possible refusal, it is very important that you put in as many documents as possible to convince the Entry Clearance Officer that a marriage visa should be granted.
It should be noted that refusals can also be based under paragraph 320 of the immigration rules which is where false representations have been made or false documents have been submitted (whether or not material to the application, whether or not to the applicant's knowledge and irrespective of the applicant's age or the category of visa sought), or material facts have not been disclosed. It is therefore very important that entry clearance application is completed totally honestly and accurately so there can be no refusal under paragraph 320 which could result in a 10 year ban from the Applicant coming to the UK. If you are concerned that there could be issues in a case, legal advice should be sought.
Once in the UK
If your foreign spouse (and any dependants) are granted a visa it will initially be for a 2-year probationary period. They can then enter the UK and live with you. The foreign spouse (and any dependants) can work full-time, study, or enjoy the benefits of living in the UK . The spouse from abroad will be prevented from claiming welfare benefits during the probationary period. At the end of the 2 year period, your spouse (and any dependants) will be able to apply for indefinite leave to remain in the UK, on the basis that the marriage is continuing- welfare befits can be granted after indeifnre leave to remain has been granted. After a further 3 years and assuming the spouse in the UK is British, the foreign spouse can apply for British citizenship. If during this period the marriage has broken down, then your foreign spouse may not apply for indefinite leave to remain on the basis of the marriage and would need to look at alternate options to regularise their legal stay in the UK.
*Please note that the above article does not relate to nationals of the European Union.
For any questions regarding the subject covered in this guide, please register in our forum and post your question under the appropriate category.
Disclaimer: The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. Information is offered for general information purposes only, based on the current law when the information was first displayed on this website. You should always seek advice from an appropriately qualified solicitor on any specific legal enquiry. For legal advice regarding your case, please contact Greenfields Solicitors for a Consultation with a Solicitor on 020 8884 1l66.