Financial requirement – partner visas – date of assessment

Many readers will know about the financial requirement for partner visas, and especially those who have read our blog “Financial requirements for Family Visas”, 12 April 2021. 

One of the main aspects of these rules is that a lone applicant can meet the rule by showing that there are earnings of at least £18,600 per year. 

But supposing that the applicant meets the requirements of these rules at the time of the visa application but after that the situation changes and they no longer meet the requirements? Well of course in most cases nobody would ever know, and the issue does not come up. If the visa is granted then nobody is likely to ask any more questions. 

But in the recent Upper Immigration Tribunal case of “Begum” the situation was more complicated, and the Tribunal came up with a decision which we thought was perhaps surprising but which will no doubt be very helpful for some future partner visa applicants. 

The applicant Ms Begum had applied from Bangladesh for a spouse visa so that she could join her British husband in the UK. Her husband worked in employment, and she claimed that he earned more than the minimum required. But the Entry Clearance Officer refused the application, on the grounds that the financial requirements were not met, and there were various deemed deficiencies in this respect. 

Ms Begum appealed to the First-Tier Immigration Tribunal and, at the hearing, the judge decided that in fact she had met the financial requirements when the application was submitted. But it also emerged that, by the time of hearing, her husband had given up his employment, and was now working as a self-employed person. And there was no information before the Tribunal as to whether she might meet the financial requirements on the day of the hearing. 

The judge at the First-Tier Tribunal adopted the course of action that might traditionally be expected: relying on a specific legal provision (section 85(4) of the Nationality, Immigration and Asylum Act 2002) he said that he was entitled to take into account matters which had arisen since the date of decision. And in this instance of course the highly significant thing that had changed since then was that it was no longer obviously the case that Ms Begum’s husband’s earnings were sufficient to meet the requirements of the rule. On this basis the judge dismissed the appeal. 

This sort of situation, as the judge indeed acknowledged, throws up a curious issue. If the ECO’s decision had been correctly taken then Ms Begum would have got the visa. But because it was incorrectly taken she had ended up not getting the visa, and the Tribunal had not seen fit to correct the matter by directing the ECO to grant the visa. So it might be said to be neither fair nor logical. But this was, the judge thought (and indeed many lawyers would probably have agreed with him), the way that the law worked. 

Undeterred, Ms Begum appealed to the Upper Tribunal and eventually, by the Judicial Review route via the High Court, she managed to get them to hear the case. And, surely unexpectedly, the Upper Tribunal said that the First-Tier Tribunal judge had got it wrong. 

Despite what section 85(4) might say, and to put it short, the correct legal understanding had required the First-Tier Tribunal to consider the situation at the date of the decision, not at the date of the appeal hearing, and the appeal should therefore have been allowed, not dismissed. 

So Ms Begum, after her heroic struggle, succeeded. 

These issues surrounding the date of assessment can sometimes be complex and, as we see, sometimes the case law changes. We at GSN Immigration have expert knowledge in this area and we will be able to advise and assist you if you need us. 

Author

Oliver Westmoreland

OISC Level 3 Immigration Lawyer