Widely expected important new Spouse Visa Guidance are now out following the amended family Visa rules coming into force from 10th August 2017.
Following the changes to the spouse visa rules from 10 August 2017 (you can read the Appendix FM and SE here), the Home Office has published its Guidance on family visas- Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0a, August 2017 as stated in the Memorandum to the Statutory Instrument. The Guidance is 104 pages long and has dedicated around 13 pages for Article 8 related claims. You can read it here. Although it was released on 10th August 2017, some of the links referred to therein are not working. As the Guidance is not a piece of legislation or rule, the civil servants have reproduced some of the relevant rules contained in the Appendix FM in the Guidance itself in order to make it easier for the readers to relate the Guidance to the rules.
Among other things, the Home Office claims that it is the most comprehensive provisions and the guidance in respect of human rights claims which reads as “the Statement of Changes in Immigration Rules HC 290, which came into effect on 10 August 2017, restructured Appendix FM such that it now provides a complete framework for our Article 8 decision-making in cases decided under it”.
In addition to the above Guidance, the Home Office also has published the ‘Immigration Directorate Instruction, Family Migration: Appendix FM Section 1.7 Appendix Armed Forces, Financial Requirement, August 2017’ (you can read it here). Again this not a piece of legislation but only a Caseworkers’ Guidance. This Guidance has some useful work-out examples and case studies on how various income requirements can be met, as the rules did not provide these detailed information. The prospective applicants can get help from this Guidance to understand how the Appendix FM and Appendix FM SE will be interpreted by the decision makers in the Home Office. The last paragraph ‘10’ is mainly allocated for the applicants in exceptional circumstances which is around 6 pages long. A proper understanding of this Guidance will really help the decision makers, advisers and the prospective applicants alike (if they have better understanding of this Guidance). It appears to the writer that if someone relies on this Guidance but their application is refused they might argue that they relied on the Guidance of the Home Office and it should not be allowed to go back on it. In the meantime, a decision based on the failures to comply with the Guidance may be challenged by the prospective applicants for its lack of legal authority i.e. the instruments which are not placed before the Parliament and approved.
The Guidance also provides many useful clarifications on the interpretations of documents and how different documents should be looked at depending on the applicant’s circumstances, as no one size fits all solution, particularly evidential burden and flexibility (paragraph 3.4) wherein the Guidance reflects on some realities, such as the authorities or institutions in some countries may not issue documents and evidence in the form and with the details that the relevant Appendix requires. Therefore, the decision maker cannot simply refuse an application for lack of compliance with the rules. The question is whether the burden of proof is on the Applicant or it is up to the decision maker to appreciate the custom and practice in a particularly country. This is more relevant if the entry clearance decisions are taken in the UK-whether the decision makers have been trained on the custom and practice in a particular country.
The legal advisers will appreciate that some employers, even in the UK refuse to provide all the requisite details in their confirmation of employment letters claiming these details are in the payslips and P60s and the Home Office can extract these details from them. They further add in their letters that it is their policy to provide only certain information in their letters and if further information required Home Office can contact them. As far as employees are concerned they face imminent refusal of their applications since the burden of proof is on the applicants.
To summarise, if anyone wants their application to be successful they should read and understand the Appendix FM and SE and the above Guidance before they make their applications. Anyone wants to know more about the new rules they can read our blog published on 2nd August 2017.