April 29, 2020 384
Some appeal cases are very stressful for the parties involved. We had a client who was a Moroccan lady who had come to the UK on a spouse visa to live with her husband. He was Moroccan by birth but he had lived in the UK for about 50 years, had worked hard, had qualified for two pensions, and was a longstanding British citizen. He also had a large extended family here, and he was thus thoroughly integrated in the UK.
Our client needed to extend her spouse visa and she approached some lawyers about this. Unfortunately they were not competent and they gave the wrong advice. They told her that the combination of her husband’s pension earnings and their savings in the bank would be enough to meet the financial requirements of the immigration rules.
But this was not correct: the level of savings was not high enough. Her application was thus unsurprisingly refused by the Home Office, and at that point we were instructed by her.
She had the right to appeal to the First-Tier Immigration Tribunal and we advised her that she must appeal. If she did not she would become an overstayer and would either have to leave the UK or possibly be removed from the UK by the Home Office. She accepted our advice and so we lodged the appeal for her. Her immigration status was now protected for the time being.
So far so good, but what then? Our client had instructed us that she and her husband had increased the amount of money held in their bank account, and we confirmed with her that the amount of money now held would be enough to satisfy the requirements of the rules. This however was only partly helpful: one of the criteria in the financial requirements is that savings must have been held for at least six months.
So, at that point, our client did not yet meet the financial requirements, because the extra money had only recently been put into the account. So we advised her about “Plan A”. It takes quite a while for appeal hearings to happen. Very possibly the hearing would not happen for at least six months and, if this was the case, by that time she would meet the requirements and the appeal hearing would therefore be very strong and thus likely to be successful.
But unfortunately this did not work. The appeal hearing came quite quickly, and the extra money had not been in the account for long enough. So now we told our client that we had to rely on “Plan B”. (If this did not work then we also had “Plan C”, but hopefully we would not need it.) Plan B was something quite different. One part of the rules says that even if the financial requirements are not met an applicant can rely on the “insurmountable obstacles” test. This test is that the applicant must show that there are insurmountable obstacles (ie very significant difficulties) to the parties continuing their relationship somewhere outside the UK.
This strategy did have its risks. An Immigration Judge considering such an appeal might say that, as both parties had been born in Morocco and they both spoke Moroccan Arabic fluently, they was no strong reason why they could not both relocate to Morocco.
But fortunately, in the event, the Judge hearing the case at the Tribunal thought differently. He thought that the appellant’s husband’s exceptionally strong ties to the UK carried a lot of weight and that it would be unreasonable and disproportionate for him to have to relocate to Morocco. And he was impressed by the oral evidence of both our client and her husband, which he said was honest and credible. So our client’s appeal was successful and we did not need to rely on Plan C. This experience had, for obvious reasons, been very trying for both of them.
This story teaches us, firstly, that you should be very careful about who you instruct in the your family visa application and, secondly, that if you find yourself involved in an appeal before the First-Tier Tribunal you need first-class case preparation and advocacy. At Get UK Visa we have a lot of experience in these areas.
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