In the long awaited judgment in MM v SSHD - the test case challenging income threshold of £18600 for spouse visa applicants - the Supreme Court has upheld the Minimum Income threshold of £18,600 to sponsor foreign spouses.

The court has however found that the rules did not properly take into account sources of income and welfare of children affected by the rules.

The Home Office will now have to issue amendments to the rules and guidance on cases involving children and new guidance on the assessment of other sources of income.

We understand that the Home Office is in the process of issuing the amendments and new guidance documents to address the issues raised by the Supreme Court.

If you wish to switch into spouse visa but don't meet the income requirement, you may still be able to make an application. Contact us for advice.

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UK Marriage Spouse Fiance Visa has, among others, six main legal requirements – each of which has its own set of sub-requirements – which must be met by all applicants.

1) Relationship RequirementsUK Marriage Spouse Fiance Visa

The sponsor must be:
A British Citizen; or
Present & settled in the UK; or
A Refugee or a person with humanitarian protection; and
At least 18 years old at the date of application; and

The couple must not be within the prohibited degree of relationship;
They must have met in person;
Their relationship must be genuine and subsisting;
If they’re married, the marriage or civil partnership must be valid and recognised in the UK;
The previous marriage or partnership, if any, must have permanently broken down; and
They must intend to live together permanently in the UK.

Bear in mind that some of these requirements are subjective and burden of proof is on the applicant to evidence that they meet them.

Applicants for Fiance(e), Proposed Civil Partner, or Marriage Visitor Visas must evidence that they are seeking entry to the UK to get married or to enter civil partnership within six (6) months of arrival. Applicants for Fiance(e) or Marriage Visitor visas must also evidence that they will leave the UK after their intended marriage. Applicants on Fiance Visas may however apply to switch into the Spouse visa after getting married in the UK to remain here permanently.

(Applicants for UK Marriage Spouse Fiance Visa must also check, in addition to these requirements, whether they are applying from a country where a TB certificate is required).

Unmarried partners

If the applicant and the sponsor are not married but are in a genuine relationship as partners, they are able to apply for Unmarried partner visa if they can provide evidence that they have been living together in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application.

2) Suitability requirements

‘Suitability’ deals with issues of criminal conduct, ‘bad character’ and adverse immigration history. The applicants must demonstrate that they meet the suitability requirements outlined in Appendix FM at S-LTR and S-EC under the heading ‘Family Life with a partner’.

For those applying for a visa (entry clearance), they must also consider whether their application may be refused under paragraph 320 (11) of the immigration rules ‘where the applicant has previously contrived in a significant way to frustrate the intentions of these Rules.’

3) Immigration status requirement (applicable to in-country applications only)

The applicant must not be in the UK:
♠ as a visitor; or
♠ on a visa issued for 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings.
The applicant also must not be:

♠ on temporary admission or temporary release, unless paragraph EX.1. applies; or
♠ in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1. applies.

For advice on EX.1, rules and process, please book an online/email, telephone, or office consultation here.

4) Financial Requirements

In most cases it is the Sponsor’s employment or savings in the UK that are relevant in Fiance(e) or Spouse visa applications. However, that is not always the case and the applicant’s finances may also be considered if, for example, the applicant is also in employment in the UK or if the applicant has access to savings in excess of £16,000 which can be combined with the eligible earnings to meet the financial requirement. There are other circumstances in which the sponsor’s income abroad can be relied upon.

The Immigration Rules prescribe a gross annual salary of at least £18,600 as the minimum income threshold that must be met by a sponsor to be able to support his/her partner’s application for spouse or fiancé(e) visa. The income must be from one of the following sources:

♠ Salaried Employment
♠ Self-Employment
♠ Pension Income of either the applicant or the sponsor
♠ Maternity allowance or bereavement benefit
♠ Other specified income of the applicant and partner (in some cases)
♠ Cash savings of at least £16,000 held for six months combined with income from salaried employment in the UK if less than £18,600 income threshold (or higher in case of children)
♠ Cash savings of £62,500 where there is no salaried income

If you are applying from within the UK, you may be able to switch into Spouse/Marriage visa without having to meet the financial requirement. You will however need demonstrate that there are insurmountable obstacles to your return to your country of origin with your partner. If successful, you will be put on a ten (10) year route to settlement requiring extension of stay every two and a half (2.5) years.

The amounts required to meet the financial requirement are;
♠ Applicant alone £18,600
♠ 1 child in addition to applicant £22,400
♠ 2 children in addition to applicant £24,800
♠ 3 children in addition to applicant £27,200
♠ There will be an increase of £2,400 for each additional child.

The applicant also must show that the sponsor can provide adequate accommodation without recourse to public funds and that the said accommodation will not breach health regulations and will not result in overcrowding if the applicant is granted the visa.

In short one room for the exclusive use of the applicant and sponsor (even a living room) will suffice. That is if there are no children involved in the application as the children will also need to be accommodated adequately in compliance with the applicable regulations.

Exemption from Financial Requirements

The financial requirement is waived where the sponsor is in receipt of a specific Disability living allowance Severe disablement allowance, Industrial injury benefit, Attendance allowance, Carer’s allowance, Police Injury Pension. The couple, however, will have to provide specified evidence that the settled partner is able to maintain and accommodate themselves, the applicant and any dependents with adequate maintenance without recourse to public funds. The adequate maintenance which has been interpreted by the British courts as a level of income which is equivalent to or greater than the “income support” level.

5) English Language Requirement

The applicant is not required to meet the English language requirement if the applicant is from a majority English speaking country or has completed a degree which was taught in English or is over age 65 or have a physical or mental condition which prevents you from meeting this requirement or there are exceptional circumstances which would prevent you from meeting it.

For all other applicants, valid evidence of his/her proficiency in English language at A1 level is required.

There are other additional requirements such as Suitability requirements specifying additional criteria to be met concerning, for example:

♠ Previous immigration history
♠ Other procedural issues
♠ Overstaying and other complex cases

6) Evidential requirements

An application may be refused even when the applicant appear to meet all these legal requirements. The reason behind refusal is mostly that the applicants fail to observe and comply with strict evidential requirements. In other words, they fail to provide the supporting evidence in the prescribed format. Some of the consequences of such refusal are:

♠ that the applicants lose the application fees
♠ that the applicants have to spend much more on appeals with little or no prospects as the law prohibits applicants to rely upon new evidence at appeal which wasn’t submitted with the original application;
♠ that they might have to apply again with more fees to pay
♠ that the future applications might become complicated or even impossible, in certain unfortunate cases

It is therefore in your best interest to seek legal advice and representation prior to making an application for your Spouse, Marriage, Fiance, Civil partner or Proposed civil partner visa.

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UK immigration law is complex. However, as Britain's leading immigration lawyers with inimitable reputation for excellence, we will provide you with immigration advice and services that are tailored to your circumstances, free of legal jargon and aimed to get the best possible results for you.

Our leading immigration lawyers and advisers in London & Birmingham will provide you with an interpreter, if required, who speaks your language and will make a professional assessment of your case advising you of its strengths and weaknesses.

After receiving your instructions we will come on record as your lawyers and will not only provide ongoing legal advice and collate supporting evidence, but will also prepare your application and draft and submit legal representations in support of the same to the British Home Office. We will keep you informed throughout the process, liaise with the Home Office whilst your application is considered and get a decision on your application.

1st Citizen's specialist immigration lawyers will ensure you receive your UK marriage spouse fiance visa first time around and on time.

Our accredited immigration lawyers and advisers in London & Birmingham specialise exclusively in UK immigration and nationality laws and charge fixed fees unlike solicitors. Call or email us today to get the immigration advice and representation you need to develop the best possible case and increase your chances of success.