Visa granted: Entry Clearance (Settlement) – 5 years Partner route

*All names and identifying details have been changed to protect the privacy of our clients.

 

Ms. A approached our firm for help after receiving a refusal from her Entry Clearance Application as the Civil Partner of a Person Present and Settled in the UK. Her female partner, Ms. B, is considered a Settled person as she holds Indefinite Leave to Remain in the UK. Therefore, Ms. B is the Sponsor. The application was initially submitted by their previous solicitors and refused by the Home Office under paragraph EC-P1.1(d) of Appendix FM of the Immigration Rules, specifically E-ECP.2.6 and 2.10. It was refused on the grounds that they were not satisfied that the relationship was genuine and subsisting, and that the couple did not intend to live together permanently in the UK.


Relationship & Civil Partnership

The couple first met in 2004 and began cohabiting in 2008. They entered into a Civil Partnership in 2011.

Unfortunately Ms. A was an overstayer in the UK at that time as her earlier visa had expired for 6 months. Despite their same-sex relationship receiving tremendous support from family and friends in the UK, the couple did not want to be in further breach of any Immigration Rules that would essentially affect their relationship. They arranged for Ms. A to returned to her home country, Malaysia, in order to submit an appropriate visa application to return to the UK. This was in accordance to Home Office procedural rules, as any application made within the UK by an overstayer (in the absence of a subsisting relationship with a Settled/British child), would have been refused outright).

 

Sexuality & Financial Issues

  1. Upon Ms. A’s return to Malaysia, coming from a small family with no surviving parents, her closest family member is her sister who had converted to Islam upon marriage and strongly opposed the same-sex relationship. Ms. A did not want to leave Malaysia without obtaining her sister’s acceptance. This caused the couple a lot of distress and decided to postpone their returning visa application. In addition, some of their friends in Malaysia were also not accepting of their homosexual relationship and treated her very differently. All the emotional hardship deterred Ms. B from visiting Ms. A in Malaysia, in fear of exacerbating the opposition from family and friends. Furthermore, Malaysia has laws which prohibits same-sex marriages and any homosexual acts are severely punishable.
  2. Eventually in 2013, the couple decided to proceed with the visa application as they could no longer bear the separation. However, Ms. B, could not show that she had earnings equivalent to an annual salary of £18,600 in order to meet the Appendix FM financial requirements under the UK Immigration Rules.


Visa Application & Initial Home Office Refusal

Fortunately by 2015, Ms. A’s sister began softening her stance and became more accepting of the couple’s relationship after realizing how truly emotionally-dependent they were on each other. Ms. B had also improved her financial circumstances by then to meet the Financial Requirement.

In March 2015, Ms. A applied for Entry Clearance as Ms Lee’s Civil Partner to enter the UK on the Settlement Route and the application was subsequently refused in May 2015 on the grounds that the Application did not meet the Relationship Requirements. The Home Office highlighted, in their refusal letter, that the couple had not met for over 5 years following Ms. A’s departure from the UK. The Home Office dismissed reasons discussed above for their long separation as unsubstantiated.

Following this, Ms. A appointed QC Immigration to lodge an appeal  under section 82(1) of the Nationality, Immigration and Asylum Act 2002.

 

The Appeal

We immediately requested a complete file transfer from the previous solicitors and notified the Immigration & Asylum Chamber (First-tier Tribunal) about the change in legal representation. We commenced in-depth research, scrutiny of the documents and interviewed all relevant parties to gather facts and evidence.New witness statements were taken, additional documents were requested, photographs and receipts were gathered and an Appeal Bundle was carefully prepared. Given the delicate nature of the case, we advised the clients on the procedures in order to manage their expectations. We also arranged an Interpreter for the Sponsor who spoke Mandarin.

At court, our Counsel put forward persuasive legal arguments and the Bundle was very helpful.  Various evidence from the couple’s communication was presented. The Judge was convinced that the couple was in a genuine and subsisting relationship. A decision was made there and then – the hearing ended in 15 minutes.

The court determination was later forwarded to us. The final judgment scrutinised case law such as Goudey (subsisting marriage – evidence) Sudan [2012] UKUT 00041 (IAC). Blake J, the then President of the Upper Tribunal’s Immigration and Asylum Chamber, confirmed GA (“Subsisting” marriage) Ghana [2006] UKAIT 00046 which held that the correct test in assessing whether a marriage is subsisting is as follows;

  • The matrimonial relationship must continue at the relevant time, but it does not require the production of particular evidence of mutual devotion.
  • Evidence of telephone cards in capable of being corroborative of the contention of the parties communicating, even if such data cannot confirm the particular number used to phone the country in question. It’s not a requirement that the parties also write or text each other.
  • Evidence of many telephone calls during the period of the relationship is substantial support that they conducted their relationship by telephone.

The Judge also referred to Naz (subsisting marriage – standard of proof) Pakistan [2012] UKUT 00040 (IAC) which held that post decision visits by a Sponsor to his spouse are admissible in evidence in appeals to show the marriage is subsisting. Finally, the Judge acknowledged the resistance from Ms. A’s sister.

 

Conclusion

We hope that the case study presented here has outlined some of the issues and concerns associated with refusal of Entry Clearance Visas. QC Immigration has a history of successful applications as well as appeals. The in-depth work, research and time put into this case was ultimately what made the case successful. Clients are often discouraged by the lengthy immigration rules and requirements in a case like this. QC Immigration is well equipped to handle complicated cases as such. Please contact us at info@qc-immigration.com or 07825253785 to discuss.

 

Reported by Nadhrah Rafiq, Associate at QC Immigration

 

 

References

Home Office Immigration Rules, Appendix FM: Family Members (03/01/2017) Section EC-P: Entry clearance as a partner https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-fm-family-members

Home Office Immigration Rules, Appendix FM-SE: Family Members Specified Evidence (03/01/2017) https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-fm-se-family-members-specified-evidence

Home Office Policy Guidance, Immigration Directorate Instruction Family Migration: Appendix FM Section 1.7, Appendix Armed Forces, Financial Requirement (May 2016)  https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/525708/Appendix_FM_1_7_Financial_Requirement.pdf

Home Office Immigration Rules Part 8: Family (03/01/2017) Requirements for 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 being admitted on the same occasion for settlement https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-8-family-members

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 8: Right to respect for private and family life

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 14: Prohibition of Discrimination

Nationality, Immigration and Asylum Act 2002, s.82(1): Rights of Appeal to the Tribunal

Penal code (Consolidated version 2015) Act 574, s.377A, s.377B, s.377C, s.377D: Unnatural Offences

 

Cases:

Naz (subsisting marriage – standard of proof) Pakistan [2012] UKUT 00040 (IAC)

Goudey (subsisting marriage – evidence) Sudan [2012] UKUT 00041 (IAC)

GA (“Subsisting” marriage) Ghana [2006] UKAIT 00046

SSHD –v- Huang, Kashmiri –v- SSHD [2007] UKHL 11

Beoku-Betts v SSHD [2008] UKHL 39

 

By | 2017-06-26T07:47:22+00:00 March 12th, 2017|Categories: Immigration UK Lawyer Blog|1 Comment

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One Comment

  1. Bablofil March 29, 2017 at 5:50 pm

    Thanks, great article.

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