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Upper Tribunal provides guidance on spouse visa extensions

In the case of R (on the application of Bhudia) v Secretary of State for the Home Department (para 284(iv) and (ix)) IJR [2016] UKUT 00025 (IAC) the Upper Tribunal made several helpful comments for those applying for spouse visa extensions, and also judicial review applicants.

The application in question was made under the ‘old’ spouse visa rules, found in Part 8 of the Immigration Rules. However, some of the principles will also apply to applications made under Appendix FM of the Immigration Rules, which was introduced on 9 July 2012.

The Applicant had been granted entry clearance as a spouse on 5 February 2012, valid until 15 May 2014. On 30 May 2014 she applied for further leave to remain as a spouse. The Home Office refused the application on 2 July 2014 for three reasons:

1) The Applicant did not have valid leave to enter or remain at the time of application, as it had expired on 15 May 2014.
2) The Applicant did not provide six items of correspondence from the previous two years demonstrating cohabitation with her husband.
3) The Applicant did not provide an English language test certificate.

The Applicant challenged the decision in a judicial review.

Reason for refusal 1: overstaying

The Applicant became an overstayer on 16 May 2014. She submitted her application on 30 May 2014, and it was decided on 2 July 2015. The Home Office refused the application under Paragraph 284 (iv) of the Immigration Rules:

“The requirements for an extension of stay as the spouse or civil partner of a person present and settled in the United Kingdom are that ……….
(iv) The applicant has not remained in breach of the immigration laws, disregarding any period of overstaying for a period of 28 days or less ….”

The Home Office asserted that the Rule referred to an applicant’s circumstances at the date of decision. The Applicant contended that the Rule referred to an applicant’s circumstances at the date of application.

The Tribunal rejected the Home Office’s submission, noting that it was not supported by any of the surrounding Immigration Rules. It would also create “the spectre of a world of uncertainty and unpredictability” in which an applicant would have to rely on the Home Office processing their application efficiently in order not to become an overstayer. The Tribunal noted the lengthy application processing times.

The Tribunal warned against rewriting any provision of the Immigration Rules under the guise of purposive construction, relying on Iqbal (And Others) v Secretary of State for the Home Department [2015] EWCA Civ 169.

Although the case is about an application under Part 8 of the Immigration Rules, the principles the Tribunal made the decision on are equally applicable to the similar Rule in Appendix FM, as the Tribunal focused on the possible “aberrant, capricious and wholly unjustifiable outcome.”

Reason for refusal 2: evidence of cohabitation

The Applicant made her application on form FLR (M). That form required, and still requires, an applicant to provide:

“six items of correspondence addressed to you and your partner at the same address as evidence that you have been living together during the past two years.” Notes within the form then specified more requirements for this evidence.

The Tribunal held that “the Secretary of State cannot lawfully augment or modify any particular regime or compartment within the Immigration Rules by the purported introduction of a requirement of the grant of leave to enter or remain in the United Kingdom via the mechanism of an application form. The fundamental reason for this is that it lacks the necessary parliamentary scrutiny required”.

In other words, the Home Office cannot impose requirements in an application form that, if not met, will lead to a refusal. This is because such a requirement constitutes a rule and must be laid before Parliament for its approval. If it has not been laid before Parliament it cannot have the quality of law: R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33. If the Home Office had wanted those specific requirements to be provided they could have inserted such a requirement into the Immigration Rules: Ishtiaq v Secretary of State for the Home Department [2007] EWCA Civ 386.

Therefore, if an applicant cannot provide the six items of correspondence their application should not necessarily fail, providing that they can show alternative evidence that they meet the requirements of the Immigration Rules.

Reason for refusal 3: English language

The third reason the Home Office refused the Applicant’s application was because she had not provided an English language test certificate, under Paragraph 284 (ix) (a) of the Immigration Rules which requires that:

“(ix)(a) the applicant provides an original English language test certificate in speaking and listening from an English language test provider approved by the Secretary of State for these purposes, which clearly shows the applicant’s name and the qualification obtained (which must meet or exceed level A1 of the Common European Framework of Reference) unless […]”

The Applicant had already provided evidence of her English language ability to the Secretary of State in her entry clearance application and there was no suggestion it had expired or had been invalidated. The Tribunal held that “standards of common sense, reasonableness and flexibility” supported the construction that an applicant was not required to provide evidence of English language where it had already been provided in support of a grant of leave in the same category.

As the Tribunal noted, those applying under Appendix FM are protected from such a refusal, as Appendix FM makes it clear that evidence of English language is only required if the applicant has not met the requirement in a previous application for leave as a partner or parent.

Courtroom drama

In the words of the Tribunal, during the hearing “a moment of mild drama” unfolded in the courtroom. The Home Office confirmed they would be withdrawing the decision being challenged and submitted that the Tribunal no longer had jurisdiction to hear the issue. The Tribunal considered that this case was of sufficient importance to warrant a decision, and that it had the discretion to do so if there was a good reason in the public interest, following R v Secretary of State for the Home Department, ex parte Salem [1999] AC 450.

There is a similar principle in respect of appeals in Rule 17 (2) of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Rule 17 (2) allows the First-tier Tribunal to hear an appeal if there is good reason to do so, even if the Home Office withdraw the appealed decision.

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