Practical Advice

This information is accurate as of February 2017. We will be updating this information annually.

If you think you may be detained:

  1. Try to make sure that you have a mobile phone that is fully charged and has credit on it.

Don’t have a phone with a camera as this will be confiscated.

  1. Have the telephone numbers of your solicitor or legal adviser in your phone, as well as the friend(s) or supporter(s) that you would want to contact if you were detained.
  2. Put the telephone number of your solicitor/legal adviser or friends/supporters on a separate piece of paper and keep it with you at all times (in case your phone gets confiscated).
  3. Make sure you tell your friends/supporters when you are going to sign so that if you are detained they can try and get help for you. Tell your friends/supporters to put every effort they can into getting you out of detention.
  4. Make sure your friends/supporters have the name and telephone number of your solicitor/legal adviser and your Home Office Reference number.
  5. Think about what you want your friends/supporters to do with your belongings and documents that may be in your house/accommodation.

Can they get access? Have they got a key, for example? You could also give your friends/supporters a signed letter authorising them to act on your behalf.

  1. If you have an active and ongoing case with the Home Office/UK Borders Agency, take copies of it with you every time you sign.

If you don’t have evidence but you have submitted a fresh claim, for example, tell Dallas Court or the immigration officers of this at the earliest opportunity.

If you have an active case you should not be detained.

  1. If detained at Dallas Court, you will be transferred to a detention centre – ring and tell your friends/legal adviser where you are as soon as you can.
  2. If you are detained and served with a removal notice, you have 72 hours before you can be removed.

This gives you time to try and get legal representation or for your solicitor to submit a Judicial Review about the decision to remove you.

  1. You are more likely to be removed if you are from some countries rather than others. This is due to the political situation in each country and whether it is possible to return you. Find out what the situation is for the country you are from.
  2. For example, although from October 2010 returns to Zimbabwe were to be recommenced by the Home Office, we have seen that in practice very few Zimbabweans have been detained or removed. Further, there are very few returns to some other countries, for example, Somalia, Eritrea, and Iran. Many people from DRC, for example, are being detained and issued with removal directions.

However, the situation could change in the future.

More Information

This information is accurate as of February 2017. We will be updating this information annually.

This is one of a series of advice sheets designed by Greater Manchester Immigration Aid Unit for people who have claimed asylum and want to know more about their rights. We understand that facing the possibility of detention is very frightening. This advice sheet is written to help you understand the legal situation you may be in together with some practical tips about what you can do if you think you are at risk of being detained.

Summary of legal terms used in this advice sheet:

  • Leave to Enter is permission to enter the UK
  • Leave to Remain is permission to stay in the UK
  • Dallas Court is the centre where people who are claiming asylum in Greater Manchester have to sign on
  • Deportation or Removal is when someone is returned to their home country

Who can be detained under Immigration Act powers?

  • People who have just arrived in the UK and who are waiting for an examination by an immigration officer to decide whether or not they can be granted admission to the UK.
  • People who have entered the UK illegally (for example, in the back of a lorry or using false documents), who are waiting for a decision as to whether they will be granted leave to enter, and who are waiting for removal if leave to enter is refused. Many people claiming asylum will fall within this category.
  • People who have overstayed their limited leave to remain, or who have breached conditions attached to their leave to remain, and who are waiting for a decision about whether they are to be removed from the UK.
  • People against whom the United Kingdom Visas and Immigration (UKVI) is taking deportation action. Most people in this position will be foreign national prisoners who have completed their criminal sentence.
  • If someone does not fall within one of the above categories their detention will be unlawful.

Who cannot be detained under Immigration Act powers?

  • People who cannot be detained under Immigration Act powers are:
  • British citizens
  • People with indefinite leave to remain
  • People with limited leave to remain who have not breached the conditions attached to their leave to remain

Who is likely to be detained?

  • Just because someone falls within one of the categories of people who can be detained, they will not automatically be detained.
  • Where there is a power to detain, there is also a corresponding power to grant “temporary admission”.
  • Temporary admission (also known as temporary release) is a status which allows a person to be lawfully at large in the UK without them being granted leave to remain.
  • Most people who are claiming asylum are given temporary admission while a decision is made on their case. People can spend years on temporary admission.
  • Refused asylum seekers from countries which UKVI does not send many people back to will often remain on temporary admission until such time as UKVI contemplates removal action.
  • There are usually conditions attached to temporary admission including, for example, having to report to UKVI (at Dallas Court) weekly or monthly, and to live at specified address.
  • UKVI has policies about which of the people in the above categories will be detained. This policy is contained in the Enforcement Instructions and Guidance, which can be found on the policy and law section of the UKBA website – www.ukba.homeoffice.gov.uk

UKVI policy says that there is a presumption in favour of liberty, but that detention will be justified in the following circumstances. These are:

  • Where there are reasonable grounds to believe that a person will fail to keep to the terms of temporary admission, for example, if they have a history of absconding or using deception
  • Where removal from the UK is imminent
  • Where a person has just arrived in the UK, for a short period, to clarify their identity and nationality
  • Experience also suggests that foreign national prisoners facing deportation action are almost invariably detained at the end of their criminal sentences.

On the other hand, the following people should not normally be detained:

  • People who have been tortured, where there is independent evidence of torture
  • Families with young children, unless removal is truly imminent
  • Unaccompanied asylum seeking children, or age dispute cases unless the person’s appearance very strongly suggests that they are an adult
  • If detention is not in accordance with UKVI policy, then it is unlawful.

Getting people out of detention

  • If it is contended that detention is unlawful, then the way to get a person out of detention is to bring a judicial review/writ of habeas corpus. This is technical and is likely to need specialist legal advice, and is beyond the scope of this document.
  • If detention is not unlawful, then a person should first apply to UKVI to be released on temporary admission, and if this is refused then apply to the First Tier Tribunal (Immigration and Asylum Chamber) for bail. Applications to UKVI for temporary admission are fairly unlikely to be successful as, after all, you are asking UKVI to change its mind.

Bail Applications

Who can apply for bail?

  • Almost anyone who is detained under Immigration Act powers can apply to the Tribunal for bail.
  • The only exception is that people who are detained on arrival to the UK, while they are examined by an immigration officer, cannot apply for bail until 7 days after their date of arrival in the UK. People detained at Manchester Airport may well fall into this category.

Preparing bail applications

  • Firstly you need to know the reasons why a person is being detained. They should have been served with a document called a form IS91R which gives the reasons for detention. If a person has not been given reasons for detention in writing, their detention is unlawful.
  • Applications for bail are made to the Tribunal (AIT). The AIT is an independent court, which is also responsible for hearing asylum and immigration appeals.
  • Bail applications should be made to the nearest hearing centre. For those detained in the North West this is:
  • General enquirers, First-tier Tribunal (Immigration and Asylum Chamber), PO Box 6987, Leicester, LE1 6ZX
  • The application needs to be made on form B1. You can get blank copies of this form (go to the forms and guidance section and scroll down to the bottom). Detainees should be given a copy of this form by detention centre staff if they ask for it.
  • Before a person can make a bail application, they will need an address where they can live if they are released on bail. Asylum seekers who are still waiting for a final decision on their claim or asylum seekers who have made a fresh application for asylum and are waiting for a decision are entitled to support from NASS. This is either full support or Section 4 (which is prepaid card). This needs to be arranged with UKVI before the bail application is made. Otherwise the applicant will need to give an address of a friend/family member where they will live if bail is granted.

 

 

Grounds for bail

In the box on the form an applicant should set out all of the arguments why they should be released. These should address the reasons for detention in the form IS91R. Continuation sheets can be used. Common arguments in favour of release:

  • The applicant has previously complied with conditions of temporary admission and has no history of deception
  • The applicant’s removal from the UK is not imminent. This can be the case even where they have exhausted all appeal rights because UKVI finds it very difficult to return people to certain countries (for example, Iran) and in relation to other countries there are no enforced removals (currently Zimbabwe, for example, or Sudan for those who originate from Darfur).
  • The applicant has an outstanding application/appeal which gives them an incentive to remain in touch with UKVI. The stronger the chance of success of this application, the stronger this argument is.
  • The applicant has strong family ties in the UK which makes it likely they will stay in one place.

Some people are very unlikely to get bail:

  • Those whose removal from the UK really is imminent, where removal directions have been issued to take place in the next few days and there is no way to challenge this removal.
  • Those who UKVI are attempting to remove who are not cooperating with the re-documentation process, for example refusing to attend interviews with their Embassy, or refusing to make attempts to obtain documents from family overseas.
  • Those who have a poor immigration history, including a history of previously breaking the conditions of temporary admission, absconding, using deception and/or committing criminal offences.

Sureties

  • A “surety” is a person who acts as a guarantor for a bail applicant. Basically they put forward a sum of money and say that if the person breaches their bail conditions they will forfeit that money. It is not necessary to have sureties to be released on bail but having sureties may mean that a judge is prepared to grant bail where they otherwise would not do so. The form gives space for two sureties but an application can be made with just one or with more than two.
  • There is no set amount of money that a surety should put forward. It depends on the surety’s circumstances. The judge will want to see that it is an amount of money that is important to the surety, and which they cannot afford to lose. So if the surety is rich, a judge will look for several thousand pounds, if the surety does not have much money, a few hundred or even less will be sufficient. The surety must demonstrate that they actually have the sum of money that they have put forward, by providing their bank statements and wage slips, although they do not actually have to pay the money to anyone unless the applicant breaches their bail conditions.
  • Sureties must also provide evidence of their identity and nationality.
  • Background checks will be carried out by UKVI on sureties, so it is important that they are people of good character with no criminal record. The judge will also want to know how the surety will exercise influence over the applicant to ensure that they do not breach the conditions of their bail.
  • The bail form has a space for a “recognisance”. This is an amount of money that the applicant will put forward that they will forfeit if they breach the conditions of their bail. If the applicant does not have any money, it is usual to put a nominal amount here, for example, about £5. They won’t actually be asked for £5.

Bail hearings

  • The Tribunal aims to list bail hearings within 3 working days of the application being made. The sureties must attend the hearing and the applicant is normally connected by video link from the place of detention. The hearings are in public so anyone else can attend if they want to.
  • Before the hearing UKVI will produce a document called a “bail summary”. This gives more details about the reasons for detention and sets out UKVI’s reasons for opposing bail. These often contain inaccuracies and should be carefully scrutinised.
  • Proceedings are fairly informal and are in two stages. Firstly, the judge will decide whether or not it is correct to grant bail in principle. Secondly, if bail is granted in principle, the judge will go on to consider whether sureties are necessary and if they are necessary whether the proposed sureties are suitable.
  • There is a presumption in favour of bail. It is therefore for UKVI to justify the applicant’s continued detention, not for the applicant to prove they should be released.
  • If bail is refused there is nothing to stop an applicant from making repeat bail applications. However, if there have not been any changes in circumstances they are unlikely to be successful.
  • However, please note that the passage of time in itself can amount to a change in circumstances. The longer a person has been in detention, the harder it is for UKVI to justify their continued detention.

Bail conditions

  • If bail is granted, the primary condition will be that the applicant appears before the Tribunal at a specified time in the future. There will usually be secondary conditions such as residence at a given address and reporting. If a person breaches their conditions, then it is likely that they will be detained.
Information – Detention (PDF)

This information is accurate as of February 2017. We will be updating this information annually.

This is one of a series of Advice Sheets designed by Greater Manchester Immigration Aid Unit for people who have claimed asylum and want to know more about their rights. This advice sheet is written to help you understand the legal situation you may be in, together with some practical tips about what you or your friends or supporters can do to help you make a Fresh Claim.

Summary of legal terms used in this advice sheet:

  • Leave to Enter is permission to enter the UK.
  • Leave to Remain is permission to stay in the UK.
  • Dallas Court is the centre where people who are claiming asylum in Greater Manchester have to sign on.
  • Deportation or Removal is when someone is returned to their home country.
  • The terms ‘Home Office’ and ‘UKVI’ are used. They are all part of the Government that makes the decision about your asylum application.

Understanding Fresh Claims

Many people in detention will be people who have claimed asylum who have had their asylum claims refused, have exhausted their appeal rights, and are being detained for the purpose of removal.

The only way in which someone in this position can prevent removal is to make a fresh claim for asylum.

A fresh claim for asylum is defined in the Immigration Rules as: “Fresh Claims 353. When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim.

The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

  • had not already been considered; and
  • taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
  • This paragraph does not apply to claims made overseas.

Paragraph 353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.

This paragraph does not apply to submissions made overseas.”

Put more simply, to be able to make a fresh claim you need to be able to show two things:

  • that there is some new evidence or change in circumstances which has not been considered by the Home Office,
  • that this new evidence will make a difference to the outcome of the case. This means that there is some chance that the new evidence will show that you, the person claiming asylum, would be at risk of persecution in your own country.

Types of fresh claim

  • If there is no new evidence and nothing has changed then there is no possibility of making a fresh claim and it is likely that nothing can be done to prevent removal.
  • Not everyone who feels that their asylum claim has been dealt with unfairly, and that the decision to refuse was wrong, will be able to make a fresh claim!
  • If the new evidence would not make a difference to the outcome of the case then again, a person cannot make a fresh claim. Some of the most common circumstances where a person can make a fresh claim are set out below:

Disclosure

Where you have not felt able to tell the Home Office or the Immigration Judge about everything that happened to you. It is hard sometimes for people to say at such an early stage that they have been tortured or raped. But if the Home Office or the Immigration Judge did not believe that you were telling the truth in your first asylum claim then it is likely that you are going to need medical evidence from an organisation like the Medical Foundation for the Care of Victims of Torture to back up this kind of fresh claim.

New Documents

You have received some important documents from your own country, which you did not have when your first asylum claim was considered. These could be things like arrest warrants, summons, newspaper articles or threatening letters, which show that the Government or others in your country is still looking for you.

Make sure that you can explain how you got hold of the documents, and if they were sent to you, keep the envelope that they arrived in. If the documents are not in English, you are going to have to get them translated. However, if the judge who heard your appeal did not believe you were telling the truth, it is likely that your documents may be thought to be fake.

If you can, you should see if you can get the documents authenticated by someone who is an expert on your country.

Change in the Law

There may have been an important change in the law relation to your country. From time to time the courts in this country issue what are called “country guidance cases”. These consider which people from a particular country would be at risk. It may be that a new case will decide that you are in one of the categories of people who would be at risk. Keep in touch with community organisations who represent people from your country so that you can find out about these changes in the law. But remember that it will not help you if the Home Office or court did not believe that you belonged to that category of people.

Change in Conditions in Your Country

There has been a change in the political situation in your country. For example, there has been an increase in the number of human rights abuses which show that even low-level political activists would be at risk.

Religious Conversion

You have converted to a different religion after your asylum claim was refused, and people who belong to your new religion are persecuted in your country.

You will need a statement of support from the leader of the church or other religious group that you go to, or your religious conversion is unlikely to be accepted as genuine. You could also gather statements from other members of the congregation who know you and can say that you have converted.

Serious Illness – Mental or Physical condition

You have been diagnosed with cancer, a heart or kidney condition, HIV or another serious illness.

Please be aware that it is very difficult to succeed on a fresh claim based on medical grounds, you have to be extremely seriously ill and you have to be dependent on medical treatment to stay alive.

Just being diagnosed with a serious illness, if you are still healthy, will not give you grounds to make a fresh claim, even if treatment is not available in your country.

Sexuality

You have “come out” as gay or lesbian since your first asylum claim was refused, and gay and lesbian people are not accepted in your country. You will need to get statements of support from your current or previous partners or people who know you to support this kind of fresh claim. There are organisations that support people in these circumstances whom you should contact.

Activities in the UK

You have become involved in politics in the UK, and you are afraid that the authorities in your own country will know about this so you will be at risk if you go back. You will need a letter of support from your political party explaining what your role is with them and also why they think that the authorities in your country would know about your political activities
Family life

You have developed family life in the UK since you were refused asylum and your partner/children are settled in the UK and cannot be expected to follow you to your country of origin. You can argue that to remove you would be a breach of your rights under Article 8 of the European Convention on Human Rights.

Fresh claim procedure

You should make an appointment with the Liverpool Further Submissions Unit (FSU) which is managed by UKVI in Liverpool. You will need to call the following number 0151 237 0980, you will be asked for your contact details ( name, address, telephone number, Home Office reference number and name of any dependants) and will be given an appointment. There is a wait for about 4 weeks. Your appointment will take place at the Home Office in Liverpool and you will have to attend in person together with any dependents. Prior to this appointment you will be sent an appointment letter and a form, which you will need to fill in and attach to it all the evidence you have and 4 passport photographs. When you attend your interview do not forget to bring with you evidence of your identity as you may not be allowed in the building otherwise.

If you are detained you should give your new evidence to the local immigration officers who will forward it to the relevant departments for a decision.

It usually takes a very long time for the Home Office to make a decision on a fresh claim. This is because the Home Office have a large backlog of cases to deal with. Once a person has made a fresh claim, they will become entitled to NASS  Section 4 support and if they are not released they would have a very good chance of being granted bail.

However sometimes if a person makes a fresh claim while they are in detention pending removal UKVI will make a decision very quickly, almost certainly a decision to refuse. If it is not accepted by the UKVI that the application meets the legal test to be a fresh claim, then the only way of challenging this decision is by Judicial Review. This would have to be done extremely urgently in order to prevent removal.

Information a person will need to make a fresh claim

The following documents would be needed to assess whether or not someone has grounds to make a fresh claim:

  • Home Office Reasons for refusal letter
  • Asylum Interview record
  • Asylum statement
  • Appeal witness statement
  • Immigration Judge’s Determination – this is the document prepared by the Immigration Judge who heard the appeal. This document is very important when making a fresh claim for asylum as it will identify what parts of the earlier claim were believed or not if you do not have the full file of papers then you can ask for a copy of your file from UKVI.

Common problems with fresh claims

Even if there is new evidence it still might not be possible to make a fresh claim. Some of the common problems with new evidence are set out below:

  • “Dodgy” documents.
  • If it wasn’t believed that you were telling the truth in your first claim, and you cannot get your new documents authenticated, then they are unlikely to be accepted as genuine. This is particularly a problem in relation to certain countries where the evidence is that even genuine documents can be easily obtained by paying a bribe, and lots of people before you have tried to use false documents in their asylum claims. Or you could have a problem if your documents contradict what you have said before. You need to look very carefully at documents that are sent to you from your own country. Do the dates make sense? Are you sure that the documents are genuine?
  • Non-serious health problem. You have a health problem, but it is not serious enough for you to be able to meet the high threshold in this kind of case.
  • Independent evidence. You do not have any new independent evidence. If you have not been believed to be telling the truth before, then anything you say now will not be accepted, unless it is supported by some evidence which comes from an independent source. So, for example, if you have a letter from your mother saying that your brother has been arrested for the same reasons that you fled the country, this will not help you very much because you could easily have written this letter yourself, and you have already been found to not be telling the truth.
Information – Fresh Claim (PDF)

This information is accurate as of February 2017. We will be updating this information annually.

Law, process, and procedure

A spouse visa is a form of entry clearance, which is given to people who wish to come to the UK to join a husband, wife, or civil partner. People sometimes call this kind of visa a marriage visa. The ‘applicant’ is the person overseas who wishes to come to the UK.

In order to apply for a visa of this kind a person must be married or in a civil partnership with a person who is either a British Citizen, or has ‘settled status’ in the UK, which really means any person with Indefinite Leave to Enter or Remain. This person will be known as the applicant’s, sponsor’.

Applications for spouse visas, which are granted, will be valid for a period of 2.5 years. After this initial 2.5 year period, an application must be made to the Home Office for this to be extended. Extensions will again be for a 2.5 year period. Initial applications are made by applying to the relevant British Embassy, High Commission, or Visa Application Centre in the applicant’s country of origin.

This advice sheet will tell you a little about the requirements that someone must satisfy when applying for a spouse visa, and a little about the procedure that must be followed. Please note that every case is different and this advice sheet is not to be taken as a substitute for obtaining legal advice specific to your personal situation.

The Immigration Rules: Spouse Visa applications

Applications for spouse visas are made under Appendix FM of the Immigration Rules. This means that in order to be granted a spouse visa an applicant must satisfy each part of the relevant section of Appendix FM, and provide evidence to prove that they meet the rules to the relevant embassy, high commission, or visa application centre in the applicant’s country of origin.

This advice sheet will look at each of the rules in turn and give examples of the kinds of evidence that you can submit to satisfy them. The examples given are not exhaustive however, and there are no set rules on the kinds of evidence that can be used to satisfy each part of the rules. Don’t be afraid to submit other kinds of evidence if you think it will help to prove a particular point.

The ‘partner’ requirement

To satisfy this part of the rules the applicant needs to show that their partner in the UK (the sponsor) is either a British Citizen or has indefinite Leave to Remain. Usually a copy of the relevant passport, status document or biometric residence permit will be sufficient to establish the sponsor’s status in the UK.

The ‘age’ requirement

Next, it is necessary to show that both the sponsor and the applicant are over 18 at the time they apply for the visa. This can be established by providing proof of each parties identity including date of birth. A passport, identity cards or birth certificate will usually be sufficient.

Prohibited Degrees of Relationship

Next, it is necessary to show that neither the sponsor nor the applicant are in the ‘prohibited degrees of relationship’. This means that they must not be too closely related. In short, parents, grandparents, siblings, uncles, aunts, nephews and nieces are not permitted to marry or enter civil partnerships. There are further rules applicable if either of the parties has been adopted or in a previous marriage or civil partnership, and is proposing to marry or enter into a civil partnership with a party who is in some way related because of the adoption or previous marriage or civil partnership. If this applies to you, you should seek advice on this if necessary.

Requirement to have met

This means that the applicant must submit some evidence to show that they have met the sponsor. This may be evidence that you have visited one another such as plane tickets or previous visas, or for example, photographs of you both together.

Genuine and subsisting relationship

It will be necessary to demonstrate that the relationship between the applicant and the sponsor is genuine and subsisting. This can be shown in a number of ways and with a number of different types of evidence. A good starting point is often to provide a letter, from either the sponsor, the applicant, or both, outlining the nature of the couple’s relationship. Remember however, that there are no set categories of the kinds of evidence that you can provide for this.

For example, evidence of continued contact between the parties may be of assistance. This can be shown by providing telephone records, copies of email correspondence, or copies of letters and cards sent. Evidence of visits such as aeroplane tickets and photographs of the sponsor and applicant together can also be of assistance. Further, evidence which shows that the sponsor and applicant have been sending gifts or money to each other can further help to demonstrate a genuine and subsisting relationship.

Often the only evidence that the parties will have of their continued contact is pre-paid telephone cards. Whilst these can be used to support an application, it is often better to try and obtain printed telephone records. This can sometimes be done by contacting the company who produce the telephone cards and asking them to provide you with printed records of the calls made.

Further, contact is increasingly maintained by way of programs such as SKYPE, Facebook and by smart phone apps such as Whatsapp and VIBER. If the applicant and sponsor use programs such as these to keep in touch then they will need to attempt to contact the company involved to see if they can provide them with printed records of the contact between each other.

Remember that the above is only a guide and that there are many other kinds of evidence which may assist in showing that the relationship if genuine and subsisting.

The need for a valid marriage or civil partnership

Of course the applicant and sponsor need to have entered into a marriage or civil partnership, and that marriage or civil partnership must be legally recognised in the UK. The rule of thumb to apply here is that where a marriage or civil partnership is recognised as valid in the applicant’s home country then this will further be considered valid in the UK. So, for example, if an Islamic marriage is considered valid in the applicant’s home country then it will likewise be considered so in the UK. However, if the applicant and sponsor were married in another country which does not recognise Islamic marriages then this would not be recognised as valid in the UK.

Previous marriages or civil partnerships

Any previous marriages or civil partnerships that either the sponsor or applicant have entered into need to have broken down completely, and need to have been properly brought to an end either by divorce or dissolution. If either have been in a previous marriage or civil partnership, then this will need to be disclosed on the application form, and evidence of the divorce or dissolution will need to be provided with the application.

Intention to live together permanently

Evidence must be provided which shows that the applicant and sponsor intend to live together permanently in the UK. The kinds of evidence that will be useful here are similar to those that can be used to show that the relationship between the parties is genuine and subsisting. Therefore, a letter from either party, and evidence of the continued strength of the relationship between the parties will be useful here.

The financial, or ‘maintenance’ requirement

One of the major changes introduced into the immigration rules by appendix FM was the £18,600 per year income threshold. The effect of this requirement is that in order for an application to be successful, the sponsor for any application must have an income of at least £18,600 per year. If the sponsor cannot show such an income, then subject to the exceptions discussed below, the application will be unsuccessful.

The immigration rules further require that the evidence of the income provided to meet this requirement must be provided in a specified format. These requirements include, for example, specifics as to the format of bank statements provided, specifics as to the period which any payslips must cover (a minimum of 6 months), and specifics in relation to the translation of documents. The rules relating to supporting evidence can be found in full here:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/300962/Appendix_FM_SE.pdf

Savings

In cases where the sponsor does not earn the £18,600 per year, it is possible to make up any shortfall by taking into account the couple’s savings. There are a number of requirements.

Firstly, the savings must be in excess of £16,000. Then, in addition, there must be a further amount on top of that £16,000. This amount must total 2.5 the amount of the shortfall. What this means is that if, for example, the sponsor earns only £17,600, then he or she will need to have £16,000 in savings, in addition to 2.5 times the £1000 shortfall. Accordingly, he or she will need to have total savings of £18,500.

Again, this is subject to the formalities in respect of the evidence to be submitted. It is necessary for example, to show that the savings have been in the possession of the applicant or sponsor for at least 6 months prior to making the application. The full specifics of the evidential rules can be found here:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/300962/Appendix_FM_SE.pdf

Exemptions

There are some exemptions from the income threshold for those who are in receipt of certain benefits. These benefits are:

(i) disability living allowance;
(ii) severe disablement allowance;
(iii) industrial injury disablement benefit;
(iv) attendance allowance;
(v) carer’s allowance; or
(vi) personal independence payment; and
Where a sponsor is in receipt of one of these benefits, then they will only need to show the evidences that the applicant will be adequately maintained, which means that they will be supported financially, without the need for them or the sponsor to obtain further public funds.

To satisfy the requirement in these circumstances, an applicant needs to show that they have sufficient financial resources to support themselves throughout the whole of their visit. The benchmark that is set is the “income support level”. This means that a family will need to show that they have at least the same amount of funds available as they would have if they were a family of the same size receiving income support, together with money to meet their housing costs of rent/mortgage and Council Tax. Clearly however, the more finance that the applicant has at their disposal the stronger the application will become.

Wage slips, benefits letter and bank statements, will all be crucial here to show that there are sufficient financial resources available to support the applicant should he or she come to the UK.

Accommodation Requirement
As for the accommodation requirement, evidence will need to be provided to show that the applicant will have adequate accommodation in the UK. For example, a copy of a tenancy agreement or evidence of home ownership of the sponsor will be the most common form of evidence submitted here.

You must bear in mind the rules in relation to overcrowding. The rule of thumb is that children under 10 years old can share rooms, as can couples, but that others should have separate rooms. If therefore there are other people living in the sponsor’s property, then the applicant will need to show that there is still sufficient room for them to reside there.

The English Language Requirement

Finally, the applicant must show that they have a sufficient level of English, unless they come from one of the following countries:

  • Antigua and Barbuda Grenada Trinidad and Tobago
  • Australia Guyana United States of America
  • The Bahamas Jamaica St Lucia
  • Barbados New Zealand; Canada
  • Belize St Kitts and Nevis
  • Dominica St Vincent and the Grenadines

If the applicant is not from one of these countries, then there are three ways in which he or she can meet this requirement:

(a) have passed an English language test in speaking and listening at a minimum of
level B1 of the Common European Framework of Reference for Languages with a provider approved by the UKVI;

(b) have an academic qualification recognised by UK NARIC to be equivalent to the
standard of a Bachelor’s or Master’s degree or PhD in the UK, which was taught in English; or

(c) are exempt because they are over 65, have a physical or mental disability, or
there are exceptional circumstances which prevent them from meeting the requirement.

Therefore, if the applicant has a degree or recognised equivalent then they will not need to undertake any further English language tests. They will need to contact NARIC to obtain confirmation of this to submit with the application. There is a fee to be paid for this. The website for NARIC is below:

https://www.naric.org.uk/NARIC/Individuals/Default.aspx

If not however, then they will need to take an English language test in their home country, prior to making the application.

Procedure when making the application

Applications for entry clearance to the UK are made at British Embassies, High Commissions, or Visa Application Centres in the applicant’s home country. You can find details of the relevant application centre on the Home Office website:

https://www.gov.uk/apply-uk-visa#other-ways-to-apply

or at:

https://www.visa4uk.fco.gov.uk

Applicants are required to complete an online form, print this off, and take this along with any supporting documents to an appointment at the application centre. There is also an Appendix, Appendix 2, which needs to be completed by hand. This can be found here https://www.gov.uk/government/publications/application-for-uk-visa-for-family-settlement-form-vaf4a

There is a fee for the application, and applicants will either be required to pay this online when they make the application, or in person at the relevant British Embassy, High Commission, or Visa Application Centre. The kinds of supporting documents that should be submitted are those listed above, along with anything else which helps to satisfy the requirements of the Immigration Rules. Applicants will also need to submit their passports, and four passport sized photographs. Finally, applicants from many countries are now required to be tested for tuberculosis (TB) before they apply, and to present a certificate to show that they are free from TB when they make the application. The certificate must be from a centre recognised for this purpose by the Home Office.

Once at the appointment, the documents and application forms will be taken and the application will be processed. Fingerprints and photographs of the applicant will be taken at this stage. Applicants will then be contacted with a decision in due course. Please note that all the documents provided with an application must be originals.

The Decision

Applicants will be contacted with a decision. This will either be a grant of a spouse visa, in which case this will be endorsed in the applicant’s passport, or alternatively a refusal. In the case of a refusal, the applicant will receive a document entitled ‘Refusal of Entry Clearance’.

The refusal document will state the reasons why the application has been refused. This will be because the Entry Clearance Officer, that is the person who considers the application, does not believe that the applicant satisfies all the requirements of Immigration Rules. Accordingly, the refusal document will identify the parts of the rule that the Entry Clearance Officer does not believe are satisfied.

When an application is refused there are three options open to applicants. These are to appeal, to ask for reconsideration, or to apply again. This information sheet will discuss each one in turn.

Appeals

If the applicant decides to appeal the decision, they will need to lodge the appropriate appeal form with the Immigration and Asylum Chamber of the First Tier Tribunal in the UK. This appeal is lodged by completing form IAFT 6 which is usually provided with the refusal notice. In this form the applicant will need to give the reasons why they think the decision of the Entry Clearance Officer is wrong. Please note that there is a fee for the appeal, which will also need to be paid when the appeal is submitted.

Once the appeal has been submitted there will be a delay of several months while the Tribunal obtains the relevant paperwork from the relevant British Embassy or High Commission which made the decision. Once this is obtained then the Tribunal will set a date for the appeal to be heard. The applicant may arrange for a representative to attend the court on their behalf, or may ask for the Tribunal to look at the papers that the applicant has provided and make a decision on this basis. The appeal procedure can sometimes take up to, and sometimes exceed, six months.

Requests for Reconsideration
Alternatively, the applicant may write to the relevant Embassy or High Commission and ask that the decision be reviewed. This can be a quick and effective way of overturning decisions where it appears that the Entry Clearance Officer has made a mistake. The letter will need to clearly identify why the applicant thinks the decision is wrong, and why they satisfy the requirements of Immigration Rules.

For example, if the Entry Clearance Officer has refused an application because there is not enough evidence that the applicant will be adequately accommodated and the applicant disagrees then the applicant could write to point out that the evidence submitted with the application is sufficient, and ask that the Entry Clearance Manager review the decision. The Entry Clearance Manager will then look again at the decision and decide if the original refusal should be upheld or not. In practice however, it will usually be advisable to lodge an appeal at the same time to ensure that if the decision is maintained, the applicant’s right of appeal is not lost.

Making a new Application

The final option when an application has been refused is to apply again. This will require the applicant to go through the same procedure as outlined above to make an application, however they will need to provide additional evidence which addresses the reasons that were given for the previous application being refused.

For example, if the application was refused because no evidence was given that the applicant will be adequately accommodated, the applicant could reapply, and this time provide evidence as indicated above that he or she will have a place to stay in the UK with their sponsor.

More Information
As noted above, this information sheet is not a substitute for legal advice which addresses your particular circumstances. If, after reading this sheet, you still have questions then please contact our offices and we will see if we are able to offer you further advice and assistance.

Information – Spouse Visa Advice

This information is accurate as of February 2017. We will be updating this information annually.

This information is one of a series designed by GMIAU to help you understand how to make a family reunion application if you have Refugee status in the UK. Please always check for changes on the Home Office website www.gov.uk/government/organisations/uk-visas-and-immigration
The Law

Until 1st April 2013, Legal Aid was available to pay a legal representative to help with this kind of application. Legal Aid is no longer available for this type of case. This leaves refugees with only two alternatives: to pay for advice, or to make the application without legal advice and assistance.

As a refugee you may be able to make this application yourself – particularly if you read and speak English or have a friend who can help.

This fact sheet aims to equip refugees with an understanding of the law, and a practical knowledge of how applications are made. It is not a substitute for legal advice. If you want to prepare your own application and would like a legal view as to whether you have completed the application properly, please phone us. If you want help with the application please come to the drop-in on Tuesday mornings or phone us.

Who qualifies – the sponsor

The person in the UK who wants to bring their family here is known as the “sponsor”. In order for their family to qualify for refugee family reunion, the sponsor must have either refugee status or humanitarian protection.

Refugee status is granted for a period of 5 years initially. After five years, a refugee can apply for indefinite leave to remain (permanent residence in the UK). Some refugees are given indefinite leave to remain immediately – these are people who came to the UK under the Gateway Protection Programme, a special Government programme run in conjunction with UNHCR for refugees who are being resettled from abroad.

Humanitarian protection is quite rare. Like refugee status, it is granted for 5 years initially, and then indefinite leave to remain is granted after 5 years. It gives rise to almost the same rights and entitlements as refugee status. For the remainder of this advice we refer to refugee status only.

You/The sponsor should have one of the following documents to evidence the fact that you have refugee status or humanitarian protection:

  • An immigration status document – this is an A4 sheet of paper, with a picture of the person on it, their name and date of birth, and confirmation of the person’s status. It should say “refugee status” or “humanitarian protection”
  • A biometric residence permit – this is a plastic card, which looks a bit like a UK photocard driving licence, with the person’s picture on it. It will say “refugee” or “humanitarian protection”
  • A refugee convention travel document. This is dark blue and looks like a passport
  • Some people had refugee status but don’t have it any more. Once a person who is a refugee becomes a British citizen, they lose their entitlement to family reunion under the Rules for Refugees.

If you are a refugee sponsor and are thinking of becoming British, do not apply to do so until your family reunion application is sorted out.

Who qualifies – the family abroad

Refugees are allowed to bring pre-existing family to the UK under the refugee family reunion rules.

Pre-existing family includes:

  • The refugee’s spouse or civil partner, where the marriage took place before the refugee fled their own country to seek asylum in the UK
  • The refugee’s unmarried or same sex partner, where the refugee and their partner had been together for two years or more before the refugee fled their own country to seek asylum in the UK
  • The refugee’s children who are under the age of 18 and who were part of the refugee’s family unit before he/she fled to seek asylum
  • The refugee’s children who had been conceived but not born prior to the refugee leaving to seek asylum
  • The refugee’s step-children who are under the age of 18 and who were part of the refugee’s family unit before he/she fled to seek asylum, but only if the child’s biological mother/father is dead

Pre-existing family does not include:

  • The refugee’s spouse/civil partner/unmarried or same sex partner, where the marriage/partnership post –dates the grant of refugee status
  • The refugee’s siblings
  • The refugee’s parents
  • The refugee’s children who are over the age of 18
  • The refugee’s adopted children, unless they were formally adopted following a court procedure which is recognised by the UK Government (in practice, adoptions in the countries where our clients come from are not recognised)
  • The refugee’s nieces and nephews
  • Parents of refugee children

Members of the family who are not pre-existing family may be able to come to the UK under other provisions of the immigration rules or under Article 8 of the European Convention on Human Rights (the right to family life), but they do not qualify for refugee family reunion and their applications are much more complex.

The Law

The legal provisions about family reunion are found in the immigration rules. You can find the immigration rules on the Home Office Website.

There are separate rules for spouses, unmarried partners, and children. The rules for spouses and children are specified below.

Spouses

 

352A. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the partner of a person granted refugee status are that:

(i) the applicant is the partner of a person who currently has refugee status granted under the Immigration Rules in the United Kingdom; and

(ii) the marriage or civil partnership did not take place after the person granted refugee status left the country of their former habitual residence in order to seek asylum or the parties have been living together in a relationship akin to marriage or a civil partnership which has subsisted for two years or more before the person granted refugee status left the country of their former habitual residence in order to seek asylum; and

(iii) the relationship existed before the person granted refugee status left the country of their former habitual residence in order to seek asylum; and

(iv) the applicant would not be excluded from protection by virtue of paragraph 334(iii) or (iv) of these Rules or Article 1F of the Refugee Convention if they were to seek asylum in their own right; and

(v) each of the parties intends to live permanently with the other as their spouse or civil partner and the marriage is subsisting; and

(vi) the applicant and their partner must not be within the prohibited degree of relationship; and

(vii) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity.

Children

 

352D. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who currently has refugee status are that the applicant:

(i) is the child of a parent who currently has refugee status granted under the Immigration Rules in the United Kingdom; and

(ii) is under the age of 18; and

(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(iv) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of their habitual residence in order to seek asylum; and

(v) the applicant would not be excluded from protection by virtue of paragraph 334(iii) or (iv) of these Rules or Article 1F of the Refugee Convention if they were to seek asylum in their own right; and

(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.

These are the only requirements that need to be met. Notice that there is no requirement that the refugee is able to support their family financially, or provide accommodation for them.
This is a big difference between the family reunion rules and other categories of the immigration rules, where the person who is coming to the UK will always need to show that they have enough money to support themselves and their family.

Section 2 – Procedure for the application

Overview

The application for refugee family reunion needs to be made by the family members abroad, to the British High Commission or British Embassy in the country where they are living. However, the application can be prepared here in the UK, and then sent to the family member abroad in order for them to submit it to the Embassy.

If there is no British Embassy or High Commission in the country you wish to make the application, the UKBA website gives advice about which Visa Application Centre in a neighbouring country you can make the application from.

The application needs to be made on an application form called a VAF4A, together with a separate form – Appendix 4. Copies of both forms are in the resources section. For most countries, you fill in the application form online. To start the online application process, go to: www.visa4uk.fco.gov.uk

Once the online application is submitted, the applicant is offered an appointment to go to the Visa Application Centre or Embassy to submit their documents. You can normally choose the date and time of the appointment.

GMIAU has a project to help refugees to make family reunion applications.
The procedure for making the application goes like this:

Refugee sponsor comes to see GMIAU

We advise what evidence is needed to support the application

The refuge/sponsor returns with all the evidence and we assist them to complete the online application form

The online application form is submitted and an appointment made for their family to go to the Embassy

We put all of the documents together and send them to the applicant abroad
The applicant attends the Embassy with the documents and submits the application
We wait for a decision. A decision will take several weeks or months.

There is no fee for making an application.

Evidence

Various documents will always need to be submitted to support the application. This is to prove that the requirements of the immigration rules are satisfied. The evidence that needs to be submitted to support an application will vary from case to case but will include some or all of the following documents. It is helpful to break it down into categories.

Basic evidence needed for all applications:

  • Valid passport for each applicant
  • Two passport sized photographs of each applicant
  • Certified copy of the sponsor’s refugee status document/biometric residence permit
  • A statement from the sponsor, setting out who is in their family, giving names and dates of birth, how they came to leave their family behind, and what contact they are having with their family currently, what circumstances their family is living in

For applications by spouses/unmarried partners:

  • Original marriage certificate, plus English translation – showing that the marriage took place before the refugee left their country to seek asylum? Does the certificate give the correct names for the sponsor and their spouse?
  • Evidence that the refugee sponsor and their spouse are maintaining contact with each other – eg copies of emails, letters, telephone bills, telephone cards – this is to prove that the marriage is subsisting at the time that the application is made
  • Evidence that the refugee sponsor mentioned their spouse when they applied for asylum in the UK – this should be in the asylum screening interview and asylum interview record – again, this is to prove that it is a genuine and subsisting marriage
  • If the refugee sponsor is sending money to their spouse, money transfer receipts

For applications by children:

  • Birth certificate for each child – this is to show that they are the child of the sponsor – check carefully to see that the birth certificate records the date of birth that the sponsor has given you, and the names of both of the parents
  • Evidence of contact and money transfer receipts, as above

Common problems

This section aims to provide practical guidance for how to deal with some of the most common problems which will arise in this type of application.

What if the applicants don’t have passports?

For some countries (for example Somalia) it will not be possible for the applicants to obtain a valid passport. However, generally applicants should be advised to try and obtain passports if it is at all possible. This should be done before starting the application process. If the applicants really can’t get passports, then the Embassy has discretion to accept the application and to issue the visa on a document called a “Uniform Format Form”. There will need to be an explanation contained in the application as to why passports cannot be provided.

What if there are no marriage/birth certificates?

If these are not available, the Embassy can look at other evidence in order to decide whether or not they accept the relationship. Again, an explanation for the lack of these documents will need to be included in the sponsor’s statement or the covering letter. In this type of case, it will be particularly important to show that the sponsor mentioned their family when they applied for asylum.

What if there has been a long delay in making the application?

This can sometimes cause a problem, as it may make the Entry Clearance Officer think that the applicants are not part of the Sponsor’s family unit. The reasons for any delay must be carefully explained in the sponsor’s statement.

What if there is no British Embassy in the country where the applicants are living?

It will normally be possible for the applicant to go to a neighbouring country. For example, at the moment nationals of Iran can go to United Arab Emirates to make their application, or nationals of Syria can go to Lebanon or Jordan. Use the “Do I need a UK Visa” section of the application form to find out where the application should be made. This information changes regularly so always check for the most up to date advice.

What if you are trying to fill in the online application form, and you don’t know what to put in a box which is not applicable?

The online application form has lots of required fields, which need to be completed before you can move on to the next section of the form. Sometimes you won’t be able to provide the information required – for example, the form may ask for passport details for a person who does not have a passport, or you may not know a person’s date of birth. Just put something fictitious in the form – so for a passport number, put “A0000000” and make up issue and expiry dates. If you don’t know a date of birth, put in a rough approximation. You may be able to just put “n/a” or “xxx” in other boxes.

Glossary

Here are some definitions of common terms which we use in this advice sheet:

“entry clearance” or “visa” – permission given to a person to come to the UK while they are still in their own country, by the British Embassy or High Commission. A visa will give a person permission to come to the UK for a limited period or indefinitely. A vignette is endorsed in the passport and will have a “valid from” and “valid until” date, or alternatively will state indefinite leave to enter.

“entry clearance officer” – an official working in a British Embassy or High Commission, who makes a decision on an application for entry clearance

“leave to enter” – permission to enter the UK, given by an immigration officer at port

“leave to remain” – permission to remain in the UK, given by UKVI after entry

“indefinite leave to remain” – permission to live in the UK permanently. Often abbreviated to ILR.

“residence permit” – this is a vignette endorsed in a person’s passport showing that they have leave to remain in the UK. In the past, these vignettes were just a stamp; now they are more sophisticated and contain the person’s photo and other security features

“immigration status document” – a document (just a piece of paper) which is given to a person who does not have a passport to show that they have leave to remain in the UK

“biometric residence permit” – an ID card, which resembles a UK driving licence, showing that a person has leave to remain in the UK

Next steps

If you have prepared your own application(s) and would like someone to check it before submitting it to the Visa Application Centre, please let us know.

If you cannot make the application yourself, please contact us and we will do our best to assist.

Information – Refugee Family Reunion (PDF)