Dependant Visa

The history of your husband’s immigration matter is complicated. This does not mean that it cannot be resolved. It does however mean, that we need to speak with you on a telephone call or an in-person consultation to efficiently gather the facts and properly assess the merits of his case. At this stage, I am not clear on all of the immigration history needed for me to be sure of where an application should be made. If your husband is by definition, on overstayer, he will struggle to make an application from inside the UK (although there may be an option, discussed further in this answer below).  

You make reference to the applicant being your husband. You also say that the Home Office refused a visa application because you had not been living together for the past 2 years. If you are married, you are not normally expected to evidence 2 years of cohabitation. This will depend on whether you meet the definition of being legally married and it may be that this aspect of the application made had not been correctly reviewed by the decision maker. That said, even if the Home Office had accepted you were legally married, because he may be seen as an overstayer, he would also have to evidence that there is an insurmountable obstacle preventing him from making a visa application from his country of origin. Are you aware of him having any issues that may prevent him from travelling? Is there any reason as to why you personally, would need for him to remain in the UK to make his visa application?  

I suggest that this case has two areas that we should explore in an initial free assessment: 

1. 
   

   As he was not informed that his Tier 4 visa was curtailed, was he given adequate notice to regularize his immigration status?  

   
   

2. 
   

   If he is an overstayer, are you legally married? If so, making an application for Entry Clearance as the spouse of a British national will be the option that has highest merits to succeed. This is because under the European Convention on Human Rights, if the applicant has an adverse immigration history (overstaying in this case), refusing his entry for the reason of overstaying alone is usually not acceptable. This is because it will also impact the private and family life of a British national, a right protected and enshrined in the Convention. We must establish that you are legally married if we are to pursue this option. If you are not married, we will need to evidence that you have lived in the same household for a period of 2 consecutive years. The Home Office have recently referenced you not satisfying this element of the rules, so we should also talk about this on our call.  

   
   

As you are British, you are able to rely upon the UK immigration rules when sponsoring your husband’s visa. I have limited information to provide a conclusive direction, as I am not clear on how or indeed why he was issued a visa under the EU regulations at the first instance. A British national of whom lives in another EU member state is entitled to rely on either the UK immigration rules or EU regulations when applying for a visa, so it is certainly possible but I would like to understand the immigration history of your husband. The route that allows for Brits to rely in the EU regulations is enshrined by the jurisprudence in the case of Surinder Singh. I will assume, for now (and until we have the chance to have a call), that you have been able to correctly secure a Residence Card for your husband on the basis of him being defined as your family member and that you mean he has a UK issued Residence Card and not one issued by another member state. If this is not the case, you are welcome to correct me so I can amend my advice accordingly.  

At the time of writing this answer, Brexit has actually happened with negotiations on a trade deal still taking place. This means that changing a Residence Card to Pre-settled status, which is a free application, would be a sensible option (Residence cards will soon have no value). Whilst you have suggested you want him to secure a visa using the UK Immigration rules, I do not believe this is in your interests in both a financial sense and with what it will achieve for your husband, in the long term. Pre-settled status will allow for him to remain in the UK with you and work, if he would like to work. Once 5 years have been completed, he can then make an application for settled status and then for naturalization immediately after.  

If we consider the UK immigration rules in the alternative to pre-settled status, you will need to consider the following requirements: 

• 
  

  Do you earn £18,600 per year and have done so for at least 6 months (more if self-employed)? 

  
  


• 
  

  Do you have suitable accommodation for you and your husband? 

  
  


• 
  

  Does your huband meet the English language standards? 

  
  


• 
  

  Do you have around £2500 to pay the Home Office for the visa and the NHS.  

  
  

There are other factors to consider with a UK spouse visa application, which we are able to run through in more detail with our free initial immigration consultation. It may be that there are complications that will adjust the advice that I have offered above however, on the information to hand I am confident that pre-settled status is the best option for both cost and objective.