Spouse visa queries - new rules

[wormintrude]

So, I spent the last several months gathering and putting together documentation to support my application. I was unaware of the coming changes and only learnt about them a few days ago.

I have found the documentation to be rather unclear about certain specific situations, namely the one my wife and I are in.

I am an Argentine national, she is a British Citizen. We have been in a relationship for a bit over five years, and married (the wedding took place in Argentina, and is registered in the UK with GRO) for just over two. We both reside and work in Argentina, and have the intent of moving to the UK to start a family as well as join the bulk of our combined family, currently in the UK.

We are failing to correctly understand whom the income requirement applies to exactly. Whether it is _just_ for the British National or whether we could make a combined case, joining both our annual incomes over the past six months (I have been employed at my current job for over six months now, and she is self employed with a consistent income for the same period of time). Were it to apply to both (or myself alone), we would meet the requirement of a minimum annual gross income of GBP 18,600. However, were it to apply to just her, then we would most certainly not meet the requirement. Although she earns an average wage, the current exchange rate puts the Argentine Peso at 7 to 1 against the Pound Sterling, severely hindering the figures that we are able to report.

If the income could be presented jointly, then we would fulfill this requirement, but would lack the British Citizen's job offer that met the minimum level of income required during the clearance stage.

I am correct to assume that the UKBA expects a British National living and working overseas to not only leave behind a family, but also a career in order to find employment in the UK, without any certainty of their foreign spouse actually _getting_ the visa ? (i.e. what happens if my wife leaves her job in Argentina, finds one as required in the UK and I am then turned down for the visa ?)

Also, in the event that only her income counted towards the requirement, we would be able to compliment it with cash savings. That would not put us over the 18,600 GBP annual figure required, but would deem us a thousand or so pounds short of it. Is there any consideration being provided for British nationals living in countries where the exchange rate is unfavorable ?

I must say that I understand the reasons behind these changes, and suppose that to a point, they should have been expected. What I do find is that there is something of an almost deliberately unfortunate choice of vocabulary usage in all of the documents, as I am finding most of them do not make clear cases for the situations they depict. I did try the World Bridge Visa Information Services callcenter this very morning, but ended up spending about ~60 US Dollars for a representative of the UKBA (or one of its partners) to tell me they did not have any other information than that posted on the UKBA website. Which I found to be of the outmost unprofessional character!

I apoligize in advance for flooding this space with what is nothing more than my personal complications. I do so in hopes that someone can point me to, or in the direction of, an answer.

EDIT: spelling and vocabulary.

[transpondia-2011]

Most of your questions are answered in the document milieu surrounding the changes in the rules, BUT to your question about unfavorable exchange rates, which I take to include the broader sense of inequivalent economies...

The answer is no. They do not, and will not, introduce multipliers that compensate for inequivalent economies. You are stuck with spot exchange rates. The question was posed outright to the minister last week.

I am aware that they used a multiplier scheme in an earlier incarnation of the PBS, but this is not the case with family migration.

[wormintrude]

I believe that my confusion stems from the fact that English is not my first language. Particularly my understanding of technical / legal vocabulary.

In the statement of changes document, paragraph E-ECP.3.1 states _what_ requirements need to be met (18,600 GBP annual gross income and additionals for children alone and / or in combination with savings of 16,000 GBP or over), and paragraph E-ECP.3.2 states _how_ these can be met. Amongst other things, E-ECP.3.2 reads:

(d) other specified income of the applicant and partner;

This was the item that sparked the doubt, as to whether this 'specified income of the applicant' could not mean 'salaried employment' (at his or her country of origin).

That's when I decided to give Worldbridge a call. Their representative stated that the financial income requirement could be met by using the specified income of both the partner and the applicant. (She did, however, fail to answer any other questions, which makes me doubt how knowledgeable she is on the matter).

Again, perhaps my failure to understand the statement, documents and forms resides in my command of the english language. But it would seem to me that most of this documentation, statements and forms included, have been drafted with the very specific case of a UK _resident_ (as opposed to Citizen) bringing a partner whom they don't currently live with into the UK, or, in the very best of cases, someone whom they have married and needs a visa to lawfully extend their stay.

I fail to see where the case is made for a couple residing overseas, in which the British portion depends on the issuing of the Visa in order to execute their plan to return. Again, it might very well be a niche situation, but we both reside overseas and my wife is not keen on the idea of leaving a job (and me!) behind, without it being certain that I will be able to rejoin her shortly after. More over, if only her income counted towards the requirements, it would mean that the only way forward for applying would be for her to move to the UK for at least six months (if she could get a job right away). Only after she had the ability to prove that her annual gross income is equal to or above 18,600 GBP would I be able to apply for the spouse visa, with no certainty of being issued one.

I feel that I am missing something mightily obvious, but cannot really put my finger on it.

[transpondia-2011]

The only apparent thing you could be missing is the fact that WorldBridge is a pathetic mockery of a help line service. Everybody knows it. This is generally common knowledge, but as you have only started recently, you may have missed it. Now you know. Otherwise it looks like you're pretty much up-to-date...

[Kitty]

wormintrude, the IDI's (guidance used by Entry Clearance Officers when making decisions) say:

Income from employment or self-employment of the partner and/or the applicant if or once they are in the UK with permission to work. (This means that the applicant’s earnings from employment or self-employment are excluded at the entry clearance stage. There is also scope for the applicant’s partner, if they have been working overseas, to count the income from a confirmed job offer in the UK).

(Annex FM 1.7 - Financial requirement, paragraph 4)

...where the applicant’s partner is returning with the applicant to the UK to work, the partner must have confirmed salaried employment to return to in the UK (starting within 3 months of their return). This must have an annual starting salary sufficient to meet the financial requirement applicable to the application...

(Annex FM 1.7 - Financial requirement, paragraph 5.3.1)

So you can count your wife's Argentinian income but not yours. Your wife must also have a job offer in the UK for a salary of at least #18,600.

If she goes to the UK and gets a job first, then she must either work in that job for 6 months before she can rely on its salary to sponsor you, OR until she has earned #18,600 in the 12 months before you apply.

Edited to add: I would be delighted to be proved wrong in this because it seems that couples who have spent an appreciable length of time out of the UK are very disadvantaged by the new system. wormintrude, have you and your wife considered moving to a European country and working there before returning to the UK? Suggest you investigate the "EEA" sections of this website as well, to consider all your options.

[Casa]

A confirmed job offer for the sponsor which meets the minimum requirement of £18,600 with a start date within 3 months would be accepted. If not, the only option would be savings of £16,000 or above.

[wormintrude]

Thanks everyone for your answers.

I have gone over all documents again, and so has my wife. Our understanding still stands that we would need to demonstrate a 'past income' of 18,600 GBP gross or more per annum for the 12 months prior to the point of application (as she is self employed here), _and_ (not _or_) that she will need a confirmed (i.e. signed contract) job offer in the UK for 18,600 GBP gross per annum or more.

However, it would seem that this is not the sole interpretation of this point. An attorney at Birketts replied to an inquiry that I made stating what has been stated here, that only the job offer is a requirement in the event that the couple is living overseas.

Would someone be as kind, if they have the time and are willing to, to point out the part of the document that _clearly_ specifies this ? I have read over and over and seem to end up with less clarity about the requirements every time.

EDIT: grammar.

[Kitty]

I agree with wormintrude: my understanding is that the job offer for the UK partner is an additional requirement for couples returning from overseas, and not an optional alternative.

Otherwise, you would get the absurd situation where a person who actually came to the UK and started a new job would be at a disadvantage compared to a person who only had a job offer (because of the 6-month rule).

In addition, wormintrude, if you are relying on your partner's self-employment income ("category F"), the the guidance says "Cash savings cannot be used in combination with Category F."

[transpondia-2011]

In some disagreement with your attorney and at least partially in disagreement with 'Casa's' post above.

While evidence of a job offer can be submitted, it is not the only piece of evidence required for this situation.

A confirmed job offer is the *SECOND* piece of evidence in a two-part submission. The first piece of evidence required is the show-stopper, and it's misleading to allude to a job offer alone in itself being sufficient. Unless both parts are acceptable, the application will fail, and SSHD has stipulated away any discretionary treatment.

[wormintrude]

Uhm. You got me good there Kitty.

I wonder why it is that Cash Savings can be used on their own, or in combination with salaried employment but _not_ in combination with self employment income.

Also, I would have to determine is this is actually 'self employment'. In Argentina, the figure is 'Monotributista', which essentially means you bill people you work for and pay your own taxes. This does sound very much like a freelancer indeed. However, my wife has been consistently and exclusively working (as a 'monotributista') with ONE company for the last two and a half years. Perhaps there is something there to be explored. I guess I'll put on a pot of Joe (as we have ran out of PG Tips) and spend another night reading up!

[wormintrude]

Earlier today, I discussed the available options with my wife, and we pretty much decided that the only option is for her to go over there and work for six months to meet the requirement.
Ideally, I would come over for most of that time, on a tourist visa (Argentineans are allowed a maximum stay, as tourists, of six months).

A good friend of ours overheard the conversation and make the very valid point that UKBA might deny me entry into the country if I showed up with no job, no accomodation in Argentina, a six month return plane ticket and no ability to satisfactorily demonstrate that I am not intending to overstay my visa.

We feel like we are at a stranglehold and can't really catch a break. The process has gone from hard but straightforward to an illogical and irrational mess that seems to work backwards from what it used to be, not even mentioning making it nigh-on impossible to actually qualify for a visa.

Any and all comments and ideas will be welcome!

[transpondia-2011]

Based upon what you wrote, you strategy marginally improves upon using the Singh loophole, so you might as well weigh up that alternative also. For example the chances of a successful application under Singh are near 100% plus the reduced fees and so on. Only you can decide if it's right, but minimally since your partner is headed out from Argentina for 6 months minimum IN ANY CASE, it puts the Singh loophole in scope.

[wormintrude]

transpondia,

I tried googling for 'singh loophole'. I assume it is an immigration related ruling, but am not entirely sure what I am looking for.

Would you have any other references / links at hand ? They would be much appreciated!

[transpondia-2011]

try this https://www.google.co.uk/search?sourcei ... &q=eun2.14

[wormintrude]

Thanks. Taking a look at it now!

[transpondia-2011]

Thanks. Taking a look at it now!

Take careful note! Under the current framework, the Singh route *may* close forever on 16 Oct 2012. *FOREVER*. Unless something is done to legislate it back or to secure it vis-a-vis derivative rights and related judgements from the ECJ/ECHR between now and then.

There are no transition provisions in scope for those who are relying upon Singh *ON* 16 Oct, so factor that in to your analysis...

[Kitty]

transpondia, where are you getting that from? The McCarthy amendments to the regs don't change the effect of reg. 9.

[transpondia-2011]

transpondia, where are you getting that from? The McCarthy amendments to the regs don't change the effect of reg. 9.

Last Tuesday I attended an all day ILPA course...

"DT 1389 (FULL) Don't fall in love - significant others post 8 July 2012 "

for immigration lawyers which drilled down on all the new rule changes and how they worked. Plus the new Article 8 and DL interpretations. Even though it wasn't in the material, towards the end one of the participants raised the question about Singh, and the instructors explained how it was going to be gone. Then I raised my hand and asked "Did I just hear that Singh is going away?" and they said "Yes, it looks that way".

The instructors of this course were Barry O'Leary and Tim Barnden of Wesley Gryk Solicitors and they both have enormous credibility. Additionally Barry has been meeting regularly with UKBA's policy director since 19 June in order to make sure that all the various changes are adequately communicated to the legal community. So I think overall the sources are trustworthy ALTHOUGH the Singh aspect was not directly covered in the material.

Hope that helps!

[wormintrude]

transpondia,

Was there any mention during the course of how inequivalent economies are going to be handled regarding applications ? I am curious for my specific case, where my wife (the UK citizen) makes the average Argentina wage but does not meet the requirement, and where we are not allowed to use savings (of £16,000 or above) to compliment this income. In this case, if my income could count towards the application, we would meet the requirement.

As for challenges in Immigration Tribunals and / or Parliament, was there any mention ? I was told by several advisers that they expect these new requirements to be challenged. However, it would seem that such challenges would require applicants being rejected and pursuing the courts route. Which, for most of us, is just too time intensive and expensive.

Regards!

[transpondia-2011]

Inequivalent economies. They are not going to use multipliers like they did for pbs. The rationale being that if you are living beyond your means in a foreign locale, it's your choice. Not challengable either. It's just tough titties and that's that.

UK Challenges. UKBA wrote to the Tribunal in June and asked them to help identify any potential test cases, and they have already agreed one test case so far (having to do with the English requirement). They are still looking for test cases on the maintenance requirement. As for JR's, people relying upon JR's have a 2 1/2 year wait.

ECJ/ECHR Challenges. If, and when, it finally gets to Strassbourg, the determination will be based upon something called "Margin of Appreciation" which is an abstract concept so totally beyond my competence that I haven't a clue. I'll leave it for the whackos and self-styled 'experts' to explain.

[Stuck In Limbo]

Inequivalent economies. They are not going to use multipliers like they did for pbs. The rationale being that if you are living beyond your means in a foreign locale, it's your choice. Not challengable either. It's just tough titties and that's that.

Where does this 'rationale' you speak of come from? It's an utterly absurd one, wherever it originated.

If you are earning less than £18,600 a year in "a foreign locale" you are "living beyond your means"?

Nonsense.

If someone is living in a country where the cost of living is less than the UK, a salary less (in some countries much less) than that stipulated for sponsoring a non EU spouse can enable a couple to live well "within their means".

Therefore, challengable (if that really is an authoritative "rationale" which could be relied upon to challenge in court).

Additionally, how does this stack up if one is living in a country where spouses aren't even allowed to work - such as where I live?

These new draconian rules stating I must earn an impossible minimum of £18,600 have therefore literally made it impossible for my wife to apply for a spouse visa (even though she is a very successful businesswoman in her own country) and for us to move there with our (British citizen) baby.

[transpondia-2011]

Where does this 'rationale' you speak of come from? It's an utterly absurd one, wherever it originated.

Good point! The way it's written makes it unclear whose rationale it is. It's theirs. If they put their minds to it, they could no doubt put forward a more tenable rationale.

[Stuck In Limbo]

Can you cite you source, please?

[transpondia-2011]

Can you cite you source, please?

Have you read the Hansard transcripts? Confused. Do you think that country multipliers actually exist and are missing from the guidance? Or alternatively, Do you want to advocate for country multipliers? Or raise a test case or judicial review that they should exist?

[Stuck In Limbo]

You stated as a fact this reason for there being no multipliers:

The rationale being that if you are living beyond your means in a foreign locale, it's your choice. Not challengable either. It's just tough titties and that's that.

When asked where this 'rationale' comes from you stated that it's "theirs".

By asking you to cite your source for this 'fact' I'm asking you to prove this is their rationale behind not having multipliers and thereby slamming the door shut on British citizens who live abroad, have no chance whatsoever of earning that kind of money but want to bring their family home.

If you can't then just say so.

I actually think whatever their 'rationale' is behind slamming the door shut on expats with these arbitrary salary requirements which instantly stop us bringing our families home with these new rules is indefensible.

However, if I was able to afford the enormous cost of making a doomed application and taking it to appeal six or more months later (by which time the three month job offer I would need to have waiting for me in the UK would have been and gone btw) I would most likely be earning enough money where the application would have succeeded in the first place.

Bringing our baby home to be brought up in England (where she can be properly schooled and not catch malaria or dengue fever) is what my wife and I consider to be for the 'best interest' of our child, and it's nobody else's business to tell us it isn't.

I'll leave you with this...

Convention on the Rights of the Child


Article 10

1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.

The full Convention: http://www2.ohchr.org/english/law/crc.htm

A legally binding instrument

The Convention on the Rights of the Child is the first legally binding international instrument to incorporate the full range of human rights—civil, cultural, economic, political and social rights. A legally binding instrument.

Much more here: http://www.unicef.org/crc/