Implications of Coronavirus for UK Spouse Visas
The Coronavirus and Covid-19 disease are causing a devastating effect across the world. The situation can be especially stressful for individuals who are separated from family members or for those who are worried that their partner may be separated from them if an application to remain in the UK is refused. In this post we will look at some of the key issues that individuals applying to remain with spouses and partners might need to consider in the coming months.
Timing of your spouse or partner application
For anyone in the UK looking to extend their leave, it is very important that an application for further leave to remain as a spouse or partner is made prior to the expiry of your leave. This will ensure that you do not become an overstayer in the UK. While many people might have bigger worries at the moment, planning in advance and ensuring that you are in a position to make your application in good time can help avoid complications further down the line, so make sure that you have necessary reminders set for applications.
There is another factor that you may want to take into account when timing your application for further leave to remain as a spouse or partner, other than just the expiry of your leave, for when you should make your application: the financial requirement.
Depending on how you intend to meet the financial requirement, individuals may want to bring forward their intended application date or move it back. For example, those relying on the sale of shares or an asset might be affected by economic downturn, while those relying on self employment might find that they are able to meet the requirements on the basis of the last financial year (April 2019), but might not be able to meet it if they rely on this financial year (April 2020) and so chose to make the application earlier. Equally, those in employment who are at risk of being furloughed or otherwise seeing a reduction in their salary may wish to make an application for an extension of stay as a spouse or partner at a time when they are still able to meet the financial requirements.
The Home Office’s latest update to their Covid-19 policy (9 June 2020) now provides some flexibility for those who have had their sources of income affected by covid-19.
If you have experienced a loss of income due to coronavirus, we will consider employment income for the period immediately before the loss of income due to coronavirus, provided the requirement was met for at least 6 months up to March 2020.
If your salary has reduced because you’re furloughed, we will take account of your income as though you’re earning 100% of your salary.
If you’re self-employed, a loss of annual income due to coronavirus between 1 March 2020 and 31 July 2020 will generally be disregarded, along with the impact on employment income from the same period for future applications.
This will give more reassurance to individuals that their loss of income should not affect their ability to remain in the UK. Of course, this will not assist everyone – for example, individuals who have had work and pay reduced, but not through furlough, or individuals who did not commence their employment six months before March 2020.
It also does not address how individuals will be affected who were intending to rely on other sources of income, for example, if they have had a drop in rental income or if savings have been depleted during these times.
The guidance does, however, indicate that the Home Office will consider applications where the requirements are not met.
Meeting the Spouse Visa Financial Requirement
Even despite the additions to the policy allowing flexibility for the financial requirement, there will still be individuals who are unable to meet the requirements. Their options will be to either wait, until the financial requirements can be met or to rely on paragraphs EX.1 or Gen 3.1.
Gen 3.1 applies to both applications made in the UK and those from abroad and requires a decision maker to consider where the financial requirement cannot be met from the sources specified in the Immigration Rules, if there is evidence of exceptional circumstances which would mean there would be unjustifiably harsh consequences for the family, the Home Office must consider other sources of income outside of the specified ways in which the financial requirement is usually met and consider whether the family are able to support themselves in the UK.
Paragraph EX.1 only applies to applications made by people who are already in the UK. It requires the decision maker to consider if it would be unreasonable to require a relevant child to leave the UK, or if there would be insurmountable obstacles to family life continuing outside of the UK.
If either of these paragraphs apply, leave can be granted in the Spouse category even where the financial requirement cannot be met. However, in these circumstances, a grant would be on the ten year route to settlement, rather than the standard five year route.
Getting Documents for a Spouse visa application
Individuals may have more difficulty obtaining documents that they need, as many businesses in the UK and abroad are closed or only providing essential services. The biggest problem is likely to be for those who need to take English Language or Life in the UK test prior to making their applications. Where this applies, the option will be to wait until test centres have reopened, if this can be done without overstaying, or making the application with a view to adding the relevant test details later, or asking the Home Office to exercise discretion over the relevant requirement under paragraph Gen 3.2.
There may be other third parties who are required to provide documents, such as financial institutions, those involved with the sale of property or landlords who are unable to provide documents that they normally would.
The latest guidance confirms this, in stating:
In some cases, we will be able to decide your application without seeing certain specified documents if you cannot get them due to coronavirus. Otherwise, you may be asked to submit the specified documents after the date of application.
Changes to the English language requirement
If you’re asked to take an English language test as part of your application, you can apply for an exemption if the test centre was closed or you couldn’t travel to it due to coronavirus when you applied.
There is no specific mention in the policy guidance on the Life in the UK test.
Anyone who cannot provide documents that are required, due to covid-19, should seek legal advice to determine what the most appropriate action will be in their individual circumstances.
Delays to marriage ceremonies
Across the world, many countries including the UK, have halted marriages as part of the efforts to bring covid-19 under control. In other cases, while a marriage might be legally allowed to take place, individuals have had to voluntarily cancel their plans due to difficulties in getting themselves or important guests to the wedding.
For individuals outside of the UK, this is likely to mean delaying the application until after the wedding, unless you have already lived together for two years and could make an application as an unmarried partner.
For those in the UK as a fiance(e), it may be necessary to extend your leave for a further period in order for your marriage to take place. The Immigration Rules make a specific provision for this:
‘E-LTRP.1.11. If the applicant is in the UK with leave as a fiancé(e) or proposed civil partner and the marriage or civil partnership did not take place during that period of leave, there must be good reason why and evidence that it will take place within the next 6 months.’
This would involve making a further, paid for application from within the UK. For those who do not want to pay for a further application, they could take advantage of the Home Office’s extension for those with leave expiring before 31 July 2020. However, there are potential risks with this approach.
Where the application can be made from
While normally a person who is visiting the UK cannot switch from the visitor category into the Spouse or Partner category, under the government’s covid-19 policy it is now possible for those with leave expiring before 31 July 2020 to make their application directly into the Spouse or Partner category, without having to leave the UK first.
Contact our Immigration Barristers
For expert advice regarding an application for a fiance visa, proposed civil partner visa, spouse visa, civil partner visa or unmarried partner visa, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.
