Post
by AlunaAluna » Mon Dec 24, 2018 5:24 pm
I found this....
Article 8 ECHR
Artilce 8 of the European Convention for Human Rights stipulates that “everyone has the right to respect to his private and family life, home and correspondence” and that the public authorities are not allowed to intervene with the exercise of this right unless they are trying to protect the “interests of the national security, public safety or the economic well-being of the country, to prevent disorder or crime, to protect health and morals or the rights and freedoms of others”. [5]
Since British courts are not bound by the ECHR, how exactly can the citizens rely on Art. 8 when the financial requirement for the spousal visa is not fulfilled?
According to paragraph EX.1 of the Home Office Immigration Rules, Art. 8 ECHR applies upon the Immigration Rules, for the spouses who already live in the UK and hold a visa of a different category which is about to expire or who do not have a visa at all and need to apply either for a new one or for extension but are unable to fulfill the minimum financial requirement.[6]
In a situation where a British citizen or “settled person” wishes for his/her spouse to get the spousal visa, he/she will have to illustrate that their family life would be affected by “insurmountable obstacles” in the case that the spouse’s or partner’s application was denied and was forced to return to their home country.[7] It must be noted that the term “insurmountable obstacles” refer to those obstacles that would be impractical to overcome rather than impossible. For instance, an insurmountable obstacle would be if a British citizen who has lived and worked in the UK for his whole life, as a result of not being able to be with his/her spouse, was forced to move instead in a place where the language barriers will make it impossible to relocate. The same argument applies also in the case that the couple has little children and moving to another county will make it impractical for them to adapt to the new standard of life and have a stable childhood.[8]
As soon as the existence of “insurmountable obstacles” and accordingly paragraph EX.1 have been established that apply in the case in hand, then the Right to family life as described in Article 8 ECHR takes presence, regardless of whether the financial requirement for the spousal visa is fulfilled.
What that means in practice is that the spouse/partner will be granted the right to remain in the UK, under the “10-year family route” which entitles them to “2,5 years” segments of leave, able to be extended in case they continue to fulfil the requirements. After the 10-year period of continuous leave is completed, the spouse/partner will most probably be eligible to apply for an indefinite leave to remain in the UK. However, it should be noted that the final decision regarding the grant of the indefinite leave to remain depends on the discretion of the Home Office and the evidence required in each case.[9]
So, in case that your 10-year period is soon coming to an end, you must ensure that the legal requirements for applying for the indefinite leave are still the same and that no legal amendments have taken place that may affect your personal situation.
Finally, you should make sure that the documents backing your case are both correct and enough to support all the information mentioned in your application, as not doing is the most common reason for applications being declined.