Post
by avjones » Mon Aug 20, 2007 10:41 am
You've asked various questions about the tests to be applied for indefinite leave to remain as a spouse, here are some answers!
The Immigration Rules:
"Requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom
287. (a) The requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom are that:
(i)(a) the applicant was admitted to the United Kingdom or given an extension of stay for a period of 2 years in accordance with paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the spouse or civil partner of a person present and settled in the United Kingdom; or
(b) the applicant was admitted to the United Kingdom or given an extension of stay for a period of 2 years in accordance with paragraphs 295AA to 295F of these Rules and during that 2 year period married or formed a civil partnership the person whom he or she was admitted or granted an extension of stay to join and has completed a period of 2 years as the unmarried or same sex partner and then the spouse or civil partner of a person present and settled in the United Kingdom; or
(c) was admitted to the United Kingdom in accordance with leave granted under paragraph 282(c) of these rules; and
(ii) the applicant is still the spouse or civil partner of the person he or she was admitted or granted an extension of stay to join and the marriage is subsisting; and
(iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner; 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 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."
So the financial test is set out there - no recourse to public funds, similar to the test for getting the spouse visa to start with.
Time outside the UK - the BIA guidance to caseworkers states:
There is no specific requirement in the Rules that the entire probationary period must be spent in the United Kingdom. For example, where an applicant has spent a limited period outside of the United Kingdom in connection with his employment, this should not count against him. However, if he has spent the majority of the period overseas, there
may be reason to doubt that all the requirements of the Rules have been met. Each case must be judged on its merits, taking into account reasons for travel, length of absences and whether the applicant and sponsor travelled and lived together during the time spent outside the United Kingdom. These factors will need to be considered against the requirements of the Rules.
In relation to what is adequate funds under the Rules, the case law says it must be what the family as a whole would get under income support:
It is extremely undesirable that the Rules should be interpreted in such a way as to envisage immigrant families existing (and hence being required to exist, because social security benefits are not available to them) on resources less than those which would be available through the social security system to citizen families. To do so is to encourage the view that immigrant families need less, or can be expected to live on less, and in certain areas of the country would be prone to create whole communities living at a lower standard than even the poorest of British citizens. It is for this reason that a number of Tribunal cases, including Islam (13183), Momotaz Begum (18699), Uvovo (00 TH 01450) (which alone was the subject of reference by the Immigration Judge in this case) and RB [2004] UKIAT 00142 have held that the basic task for Appellants attempting to show that there maintenance will be "adequate" is to show that they will have as much as they would have if they were able to claim income support. Similar considerations apply to the different benefit structure when there is a disabled person in the family, as Munibun Nisa v ECO Islamabad [2002] UKIAT01369 shows. There have been one or two cases which have indicated that a frugal life style can be taken into account in deciding whether maintenance would be "adequate", but in our view those cases should not be followed. In particular, we doubt whether it would ever be right to say that children could be maintained "adequately" at less than the level which would be available to the family on income support, merely because one of their parents asserts that the family will live frugally. The purpose of the requirement of adequacy is to ensure that a proper standard, appropriate to a family living in a not inexpensive western society, is available to those who seek to live here.
I am not, and cannot, offer legal advice to particular people. I can only discuss general areas of immigration law.
People should always consider obtaining professional advice about their own particular circumstances.
