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Settlement rules for spouses


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[UPDATED: to include link to case]

I won a case in the Upper Tribunal the other day that I think is worth sharing. Despite, or perhaps because of, the wide(ish) effect of the findings it seems unlikely to be approved for reporting by the UT’s shadowy reporting committee (more on this soon).

Click here for a link to the case in the unreported archive.

In short, the tribunal held that Immigration Rule 287, the one under which spouses apply for settlement (Indefinite Leave to Remain) does not require the possession of current leave to remain at the time of application. The relevant sub paragraph (287(a)(i)(a)) requires as follows:

the applicant was admitted to the United Kingdom for a period not exceeding 27 months or given an extension of stay for a period of 2 years in accordance with paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the spouse or civil partner of a person present and settled in the United Kingdom…

The words ‘has completed’ had been held by the immigration judge below to mean ‘had just completed and reached the end of’. The panel, which included Dr Storey, held that this was wrong and that there is no need for the two year period to have just concluded. It could be historic, as long as it is the required type of leave, i.e. as a spouse. This allowed the appellant, who had allowed his leave to expire and had become an overstayer, to regularise his position and gain ILR.

If accurate, which is an important proviso with UKBA data, the recent Home Office research paper The Migrant Journey showed that a surprisingly high number of spouses failed to apply for, or at least obtain, ILR at the end of their probationary period. Of those entering in 2004, only 43% were settled after two years. After three years the proportion settled was only 51%. See page 3 of the paper for definition of ‘family’ and page 5 for the statistics.

Some of these cases might involve relationships that had ended and the spouse either overstayed in the UK or returned home, but the number is so high that it seems likely that a large number of spouses who are eligible for ILR simply fail to apply for it. Is this because of the incredibly high fees? Or perhaps ignorance of immigration requirements? Who knows. But they have a strong argument that would allow them to regularise their position later even if they have become overstayers.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


15 Responses

  1. i have always argued that, and have managed to get the HO to grant ILR on that basis. it’s not even about interpretation, really, because the Rule says what it says!

    1. Indeed, the rule says what it says. But at least one immigration judge out there did not accept that.

    2. Could you please give me citation of the above case as I have client in very similar position and also the test case for removal decesion.

      thank you

  2. Thanks for all the good work. Can you explain how your client acquired a right of appeal in this case as refusal to vary leave when some one doesn’t have any leave to vary doesn’t normally create such a right. Was a decision to remove made?

    1. We were lucky in that there was a removal decision we could appeal – but you are quite right, many won’t be so fortunate and will be left hanging around in limbo waiting for a removal decision. There has been a lot of litigation on this issue recently but no resolution of which I’m aware. I was in a sort of test case with four other parties a few weeks ago where SSHD agreed to issue removal decisions within 3 months, but that was under a lot of pressure from a pragmatic judge.

  3. The Migrant Journey report makes very interesting stats for a mathematician like me.
    For family routes, after 4 years only 52% achieve ILR, but 36% dropped out (visa expired) a surprisingly high figure.

    After divorces, deaths, sham marriages, UK leavers, overstayers (high fees?), and possibly refusals, how do we account for the rest, which I estimate as 10%-15%.

    The UK leavers figure could be much higher than estimated, so EC38 may be attracting S.Singh routers, or immigrants are finding the UK “family unfriendly” perhaps, or they gave up on gaining a British passport after recent Govt meddling.

    Whatever the reason, the report should not have been published without some further analysis of the 36% IMHO.

  4. Hi. I came to uk as a student then got married, sadly my husband passed away before we applied for spouse visa.is there any category i 2can apply in

    1. There is a rule that permits bereaved spouses to gain settlement in the UK in certain circumstances: rule 287. I suggest finding a good immigration lawyer. There are suggestions in the ‘finding a lawyer’ section.

  5. Many thanks for the post on settlement spouses, I referred my Counsel to this determination and we have been advised by the IJ that there will be a postive decision for my client.

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