Spouse visa Refused based on human rights (strange)

[eltotti]

Dear Members

I hope you are all Okay and safe

I have been visiting this website since 2015 to get information about UK immigration and I am really glad that this forum helped many people through their problems, and now I am one of them.

First of all, please bear with me as this post might be long, thank you for your patience and attention.

I'm on a student visa which will expire March next year, but i got married 7 months ago (we have no children) and applied for a marriage visa FLR (M) (family route) and i have provided all the evidence:
1- Relationship: Marriage certificate,pictures, council tax, bills under both names, joint bank account

2- Finance: my wife is a carer so she is exempt from the £18,600, and we provided a letter stating that mi wife is receiving carer allowance every week and she is a full time carer. she also work part time and she does 13 hours as she in on carer. we have provided 6 month payslips and a letter from her employer.

3-accomodation: a letter from my mother and father in law stating that we are allowed to live in their property as much as we want to.

4- English language: I have A1 certificate with Distinction.

we made an application and used super Priority service and was supposed to receive a decision in 24 hours, unfortunately we have received after 10 days and it was refused.

i will just briefly go into the reasons of refusal to save time for you guys to read

the letter states as follow:

Dear XX XXXX

Your application and human rights claim made on XX November 2018 is refused.

Reasons for decision

1- On XX Nov 2018 you have made a human rights claim in application for LTR in the UK on the basis of your family life with your partner

2- Your application has been considered under those rules , with reference to Article 8 of the ECHR.

3- This decision take into account as primary consideration the best interests of any relevant child in life with the Secretary of state's duty under section 55 of the borders, Citizenship and immigration act 2009.

CONSIDERATION

Family life

4- they said : I'm in relationship with my wife they have considered my application based on partner route.

5- They have considered my application under paragraph R-LTRP.1.1(a),(b) and (d) of appendix FM, however im not qualify for LTR 10 years route for the following resions: Suitability

6- my applicationcdoes not fall for refusal on ground of suitability under section S-LTR of Appendix FM

7- I meet the eligibility requirement of ELTRP of Appendix FM

Partner eligibility relationship requirement

8- i meet the eligibility relationship requirement paragraph E-LTRP1.1 to 1.12

Eligibility Immigration Status Requirement

9- i meet the eligibility requirement immigration status requirement

EX.1 Requirement

10- You do not meet the requirement of EX.1 and it does not apply in your case because although you state that your wife is a carer for her mother, you have provided no evidence to suggest that you have explored further care options for your mother-in-law or provide any evidence to suggest that another family member or friend would be unable to care for your mother in law. Your wife could relocate with you to Morocco if she wished to.

26- .........it is also noticed that your wife is working in the UK and therefore is not a full time carer for your mother in law

My question is how come my marriage visa application considered under human rights and i have provided ALL the evidence and my solicitor was very careful with every piece of paper to ensure that everything is in place, yet they come and say my wife is not a carer for my mothe in law because she work !!!! ... where i have provided two letters from carer allowance department AS A CLEAR PROF that she is a carer for my mother in law ?!!!!

Also Why they based their decision on EX.1Requirements which does not apply to me and yet they mention my wife as not a carer for her own mum and the funny thing is EX.1 is related to child best interest as i read about it online ?!!!!!!
I am extremely confused and shocked of such ground of refusal.


Now i have 14 days to appeal ... can you please benefit me on this matter as me and my wife are in a loop of questions and we do not know what to do and just waiting for our solicitor to reply to us.

thank you for your time and patience

[AlunaAluna]

Is your wife also Moroccan decent? Does your wife speak French and Arabic?

[eltotti]

My wife is a British born pakistani

[AlunaAluna]

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.

[AlunaAluna]

I think because you did not conclude that your wife cannot move to Morocco , language barrier etc they have used that angle to refuse. Seems extremely unfair!

[AlunaAluna]

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]

[Garry20g]

They refused to me as well because I m from india and my wife parents as well from india. Even my wife born in uk. HO says that we both have a indian culture so there should be no problem to settle in india by us.

[eltotti]

Thank you for your replies I appreciate it

Hi AlunaAluna
Can you please give the source of what you have found... They indeed mentioned that about my wife relocating to morocco and the language barrier.

But my point is we satisfy the financal requirements as they stated on the online guide that if a person is entitled to carer allowance they are exempt from the £18600.. So technically we have fulfilled that condition but apparently it was not enough.

Thank you once again

[AlunaAluna]

I don’t think I’m permitted to copy links for other websites. Copy and paste the text and put it into google, I think you will find the webpage.

[AlunaAluna]

Gary20g, isn’t that dearly beloved? Your wife is still British..... just because her parents are Indian has no bearing on your application married to a British Citizen. It’s an absolute disgrace.

Have you appealed?

[AlunaAluna]

Auto correct! “Dearly beloved” = should read clearly dearly beloved

[eltotti]

Thank you for the clarification

So if I appeal and provide that my wife is the only person suitable to care for her mum will be sufficient?

[AlunaAluna]

You need to seek legal counsel.
Better to have correct advice and know clearly how to proceed

[eltotti]

Will do thank you

[Garry20g]

Hi alunaaluna. I appealed and it is refused by every court.i have my own topic as well.

[CR001]

Hi alunaaluna. I appealed and it is refused by every court.i have my own topic as well.

Useful to post the link to your own topic for members to read and respond in rather than you continuing to tag onto another members thread!!!

[AlunaAluna]

Just out of interest, why when I write
C L E A R L Y dearly beloved
Does it change to dearly beloved?

I don’t know how they can refuse on those grounds .... did you not meet the financial requirement?

[AlunaAluna]

Someone is obviously having some fun changing what I’ve actually written
I’m not writing clearly beloved at all. I would never refer to the home office as dearly or clearly beloved!

[Casa]

The board is set to auto change certain words.

[AlunaAluna]

The board is set to auto change certain words.

Thought I was loosing my mind!
Wonder what other words change...

[vinny]

Do you meet the adequate maintenance requirements?

Which form did you use?

If you used FLR(M), then appeal and ask them why they think you failed D-LTRP.1.1.

[eltotti]

Do you meet the adequate maintenance requirements?

Which form did you use?

If you used FLR(M), then appeal and ask them why they think you failed D-LTRP.1.1.

thank you for your reply vinny

Yes we do meet the adequate maintenance requirements and the application was FLR (M) under family route

based on the refusal letter i have met all the requirements except the fact that i did not mention to the home office any other people to care for my mother in law as they used EX 1 to highlight that part Please go back to my topic and read.

i strongly believe that i have fulfilled D-LTRP .1.1 because

1-me (student visa tier 4) and my wife (British born) and we are in the UK living together for 7 months now

2-We made an online application FLR (M) family route.

3- i did not fall for refusal under S-LTR and i meet the E-LTRP requirements

i want to appeal but i'm confused on which ground i should appeal plus my solicitor is not responding to me with any updates

[eltotti]

thank you for your reply vinny

Yes we do meet the adequate maintenance requirements and the application was FLR (M) under family route

based on the refusal letter i have met all the requirements except the fact that i did not mention to the home office any other people to care for my mother in law as they used EX 1 to highlight that part Please go back to my topic and read.

i strongly believe that i have fulfilled D-LTRP .1.1 because

1-me (student visa tier 4) and my wife (British born) and we are in the UK living together for 7 months now

2-We made an online application FLR (M) family route.

3- i did not fall for refusal under S-LTR and i meet the E-LTRP requirements

i want to appeal but i'm confused on which ground i should appeal plus my solicitor is not responding to me with any updates

[vinny]

If your wife is receiving carer’s allowance, then I think that they may have considered the wrong rules for you.

[eltotti]

Yes and they refused based on

1- I should have considered other care options such as, friend or other family members
2- my wife is working and she is not a full time carer.

I believe the person that reviewed my case did not give any attention to the carer allowance letters stating that my wife is a full time carer and she receives carer allowance every week and it ca be seen on personl the bank statement of my wife.
On top of that... Why on earth I will seek other options for a person to look after my mother in law when my wife was do it for more than a year which is even before I met her.

This Is what makes me think that the person who reviewed my case... Does not know anything about carer allowance and it's requirements which is inefficient and now it is affecting me and my wife mentally and physically.