‘The aim is to create, here in Britain, a really hostile environment for illegal immigrants….’ This was Theresa May, in 2012, when still Home Secretary.
According to figures released by Liberty, during her time as Home Secretary (May 2010 – July 2016), Theresa May oversaw 45,000 changes to immigration rules and those changes affected every area of immigration, including visas for partners (including spouses, unmarried and civil partners and fiancé(e)s of British citizens and people who are settled in the UK.
Press coverage and the Home Office’s own statistics indicate that the position may be hardening following the EU referendum, meaning that partners of British and settled people, including those in long-term, established relationships face an often complex and invasive bureaucratic process to confirm their right to enter or remain in the UK.
Applying for a partner visa
The spouse or partner of someone who is settled in the UK (which means someone who has Indefinite Leave to Remain) may apply for a visa that permits that individual to live in the UK for up to 30 months. After this, provided the relevant requirements are met, it is possible to apply for a 30-month extension. This, in turn, may permit an application for Indefinite Leave to Remain in their own right.
There are different processes for applying for a partner visa depending on whether the application is made while the relevant individual is in the UK or is abroad. Note that in some circumstances, the application can only be made from abroad. Either way, anyone applying for entry clearance as the partner of a settled person must meet certain requirements. For example, the applicant partner must comply with requirements relating to their character and conduct, which covers any prior immigration breaches. Furthermore, if the applicant is not from one of a number of prescribed English-speaking countries, they must take an English language test and reach a minimum standard.
Equally, there are certain requirements that the sponsor partner must meet. In certain circumstances, these include complying with the minimum income rules.
Problems posed by the minimum income rules
The minimum income rules as they relate to partner visas have come in for a certain amount of criticism. Introduced by the then-coalition government in July 2012 as a means of attempting to ensure that non-EU nationals would not pose a financial burden on taxpayers, they have been challenged in the UK courts. The claimants looked to Article 8 of the Human Rights Act for support, arguing that the rules interfered with their right to a private and family life. The case ultimately reached the Supreme Court, which found the rules to be lawful, although noted that they also cause hardship in some circumstances.
Following the Supreme Court’s ruling, the immigration rules have been amended so that there is more flexibility around the application of the minimum income threshold although the threshold itself remained unchanged. However, the Joint Council for the Welfare of Immigrants has argued that the minimum income threshold is set at too high a level, particularly for those who work outside London or the South-East. Currently, as there is no suggestion of any further changes to the rules, couples who cannot meet the minimum income threshold must look for other solutions.
One possibility involves the Surinder Singh route. Open only to British Citizens who chose to exercise their treaty rights in Europe, it means leaving the UK to establish themselves in the European Economic Area for a minimum of 3 – 6 months. The route is far from foolproof; it is unlikely to be successful if the Home Office is not persuaded that the individual has transferred the centre of their life outside of the UK. It also remains to be seen how this route, and others like it, will be affected by the political and social landscape of a post-Brexit Britain.