Pitfalls of the Spouse Visa

Pitfalls of the Spouse Visa

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By Taffy Nyawanza

A RECENT decision by the Asylum and Immigration Tribunal (AIT) brings into sharp focus a problem that bedevils many families in the diaspora. In this case, the applicant spouse had applied to travel to the UK on a spouse visa and was refused, partly because she and her sponsor had lived apart for far too long.

This state of affairs is altogether too familiar in diasporic communities. Spouses and families routinely live apart, sometimes because circumstances dictate. I know a man who genuinely struggled to finance his wife’s trip to join him in the UK. I know another who pretended to struggle whilst he lived it up with a younger woman in the meantime. And so, whether by design or circumstances, lengthy separations have become endemic.

In the case in question which was notified in May 2006, the Tribunal considered the effect of such a lengthy separation. The Appellant, a citizen of Ghana was refused entry clearance under the Immigration Rules to join her spouse who was permanently settled in the UK. She came to the Tribunal to seek reconsideration of her unsuccessful appeal. Her challenge was based on what she considered to be material errors of law of what was required to satisfy the maintenance requirements and in particular what is meant in the rules by a “subsisting” marriage.

To remind ourselves, the relevant rule (Rule 281 of the Immigration Rules) states that an applicant may obtain a spouse visa to the UK where;

(i) the applicant is married to a person present and settled in the UK; and

(iii) each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting; and

(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds;

The Appellant and the sponsor were married in 1982 and had only lived together in Ghana for 2 years between 1982 and 1984. They had 2 adult children together.

The Tribunal adopted a plain assessment of the marriage relationship rather than the more limited approach of whether the marriage entered into by the parties in 1982 had subsequently not been dissolved. In other words, a marriage may very well exist legally but it is the current relationship on which scrutiny is focused.

The Tribunal said that Rule 281 requires as a starting point that the applicant “is married” to a person who is either present and settled in the UK or is granted asylum which is expressed in the present tense. Additionally, it requires that “the marriage is subsisting”. Further, that “each of the parties intends to live permanently with the other as his or her spouse”. All this goes to the substance of the relationship rather than the form, and is looking at the future of that relationship from the present intentions of the parties.

The Tribunal acknowledged the difficulties for Immigration Judges in assessing the minds of individual appellants. It said that an Immigration Judge, when assessing the subsistence of a marriage will plainly have to bear in mind the cultural context and the wide differences that exist between individual lifestyles, whether by choice, or by circumstances, or by economic necessity. He will also be able to put the claim into the context of the history of the relationship and to assess the nature of the parties’ present relationship and future intentions.

Having said this, the Tribunal concluded that on the evidence in this case, there had been no material error of law and the original determination to refuse the visa application would stand. On the basis of extensive inconsistencies and unreliability of evidence, it was not accepted that the parties were together after 1984. The inconsistencies concerned the alleged remittances by the sponsor to Ghana and it was concluded that there had been no regular support over the years.

Adverse conclusions were also drawn when the parties gave different accounts of how much money, if any, was sent. The many inconsistencies were said to go to the heart of the claim that there had been a continuing and meaningful relationship between the Sponsor and the Appellant over the years that they lived apart. There were also inconsistencies over when they first met and how long they were together. The court was of the opinion that the resumption of payments to her in 2005 was made solely to facilitate her application for entry clearance and that she had accepted an invitation from the sponsor to come and care for him as his health was deteriorating.

The court also found that the sponsor husband required all the welfare that he received in the UK to meet his current levels of expenditure and that there would be no spare funds available to meet the additional cost of providing for his wife if she joined him. It was also considered that whilst in principle she could work, she would not be able to find work in order to contribute towards the household income as she did not speak English and spoke only Twi. Additionally, the court observed that she was in fact coming to the UK to take care of the sponsor and that this would limit the possibility of her undertaking employment, even if she could find any.

The following can therefore be extrapolated from this decision;

1. In applications of this nature, the relationship between the parties to the marriage will be assessed, rather than simply whether the marriage has not been dissolved. In other words, it is not enough to be still legally married; the relationship itself will be scrutinised and evidence such as remittances of money is crucial. In my opinion, the longer the separation, the more this becomes vital.

2. It will also be considered whether the parties intend to live with each other by looking at, not just their say so but perhaps more importantly, their past conduct.

3. The parties also have to prove that they can support each other without recourse to additional public funds. An ability and desire to work is not sufficient, it is the ability to obtain a job that counts. And such an ability will be assessed by an assessment of the skills possessed by the applicant.

Many families in similar situations may well wish to carefully consider the implications of this decision.