Spouse applications and appeals

I’ve just been doing the appeal on a not-terribly-well-prepared spouse case. It was a frustrating experience as the appeal may fail, although the case might potentially have been a strong one. It is difficult to tell where the fault lies for the problems in the preparation of the case, however. It could be the solicitor but it might be that the client has simply failed to provide evidence for which he was asked.

The applicant was the wife of a man based in the UK. He was originally a refugee but is now a British citizen, having naturalised a few years ago. The UK-based partner is referred to as the sponsor in these sorts of cases.

As in many spouse cases, the main issues were (i) whether the relationship was genuine and (ii) whether the applicant would be adequately maintained and accommodated without recourse to public funds once inside the UK. I’ll address the first issue in this post and return to the other in the future.

When an Entry Clearance Officer, sometimes colloquially referred to as an ECO or as a visa officer, has doubts about whether a relationship is genuine, there are two immigration rules he or she can and usually will rely on to refuse the application. These are the requirements that the marriage is subsisting and that the parties to the marriage intend to live permanently with one another, both set out at rule 281 of the immigration rules.

Case law says that the subsisting marriage requirement means more than just legally subsisting, the marriage has to be an ongoing, ‘live’ one. It is therefore important to show that the two parties are regularly in contact, whether that is by telephone, text message, correspondence, email or pigeon. Phone bills (preferably with proof of to whom the telephone numbers belong), print outs from telephone cards (or the cards themselves, although they could belong to anyone in the mind of a cynical ECO), copies of letters and envelopes (envelopes prove someone hasn’t just sat down one night to write a load of letters), birthday cards, pigeon feed bills and so on are invaluable evidence. A witness statement or letter to the ECO explaining how often the couple are in contact, what sorts of things they talk about and a few anecdotes about recent calls can be very helpful as it humanises the whole thing, which is half the battle with most ECOs and immigration judges. Evidence of visits is very helpful, including passport stamps, photos and then any other evidence of activities together, such as restaurant receipts, cinema tickets, hotel bills and so on.

Oh, a child or pregnacy can help, too. And the length of time between the refusal of applications and the listing of the appeal against refusal means that a child is sometimes on the way by the time of the appeal hearing, with one parent in one country and the other in another. Not much chance of attending antenatal classes together.

Evidence of financial support by the UK sponsor is also important if there has been any. This can be quite tricky, as the high commission on the likes of Western Union and the relatively small amounts that are transferred make that method of transfer quite unappealing. Bank transfers are difficult as many potential recipients don’t have bank accounts. Many people send money with friends or relatives who are going abroad, but providing evidence can be very hard. A letter and copy of relevant passport stamps showing travel to the country in question from the person or people concerned is usually the best that can be done.

All of this also helps with the ‘intention to live permanently with the other’ test. However, even if the couple can show all this evidence, an ECO can still turn around and effectively accuse both parties of entering into a sophisticated sham marriage (see the film Green Card) or, more commonly, accuse the applicant from abroad of deceiving the UK sponsor in order to secure entry to the UK. This is, I am sorry to say, far more common as a reason for refusal where it is a man applying to come to the UK and/or where the man is the younger of the two spouses. ECOs can be rather old fashioned in this respect, as in so many others.

Lastly, and this was one of the frustrations about the case I was recently handling, if an appeal is necessary then the date of the assessment of the facts at the appeal is the date of the original refusal. This means that evidence arising after the original refusal is unlikely to be relevant, unless it clearly casts light on the facts at the time of the refusal. For example, evidence of a strong ongoing relationship (lawyers sometimes refer to this as ‘intervening love and devotion’, as if we’d know about that) strongly suggests that the relationship was genuine all along. However, getting a new job with more money won’t help show that there was enough money in the household at the time of the refusal.

The burden of proof rests with the applicant. Failing to produce this sort of evidence means that it is very difficult to win a case. In this case, the corroborrating evidence of contact simply wasn’t there.