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UK_Lawyer
UK_Lawyer, Solicitor
Category: UK Immigration Law
Satisfied Customers: 2058
Experience:  I am a qualified solicitor and an expert in UK law.
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I am married to a Kenyan woman since October 2011. I am 62y

Resolved Question:

I am married to a Kenyan woman since October 2011. I am 62y and living on pension credits as I am unable to work due to ill health. Which means, under current law, I am unable to sponsor her to come here to live with me. We are organizing for her to visit for 6 months, using my daughter as her sponsor.
I am applying for disability, as my health has deteriorated in the last few months, and it looks as though, in the near future, I will need someone to care for me, which will either be supplied by the NHS, or my wife.
We are also expecting an unplanned baby, who will probably be born while she is visiting, so will be registered as British.
What advice can you give to enable my wife to be able to stay here, to care for me, after her visitors visa expires.
Thank you.
Submitted: 1 year ago.
Category: UK Immigration Law
Expert:  UK_Lawyer replied 1 year ago.
Hi thank you for your question. Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE so I can get credited for my time.

Are you in receipt of disability living allowance?

Kind regards
Customer: replied 1 year ago.

for UK Lawyer


Not yet I am in the process of doing so!


My health has only recently deteriorated, which has caused this situation.

Expert:  UK_Lawyer replied 1 year ago.
Thank you for your reply.

What my suggest to you would be to wait until you have started receiving disability living allowance and then apply for a spouse visa for your wife. The reason for this is that if you are in receipt if disability living allowance then you do not need to meet the financial requirement of earning at least £18,600 gross or having at least £64,000 in savings in your bank account.

The fact is that the home office will refuse any application you submit from the UK at a visitor is not allowed to switch to another visa category while in the UK. The only other way would be to ask the home office to exercise discretion and allow an application from the UK to be accepted to the exceptional circumstances you find yourself in. For this reason the following case law maybe of benefit to you:

In the newly reported Upper Tribunal case of Hayat (nature of Chikwamba principle) Pakistan [2011] UKUT 00444 (IAC), a panel comprising Lord Menzies and Upper Tribunal Judge PR Lane has addressed the situation where in an Article 8 private and family life case, the only reason given by the Secretary of State for refusing the claim is that the applicant should return to the country of their nationality in order to make an application from overseas. This issue was famously tackled by the House of Lords in Chikwamba. The appellant in Chikwamba was a female Zimbabwean, who had unsuccessfully sought asylum in the United Kingdom and, whilst here, had married a Zimbabwean national, who had been granted refugee status. The couple had a daughter, aged 4 at the date of the House of Lords hearings. Their lordships held unanimously that it would be a violation of the appellant's Article 8 rights to require her to leave the United Kingdom, with Lord Brown holding that:]

44...only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad..

The facts of the Hayat case were very different. An Article 8 claim was made by the husband of a Pakistani national who had originally entered as a student and had then extended her Leave under Tier 4 until 2014. The couple intended to leave the UK when that Leave expired but, in the meantime: "We have become heavily dependent on each other, and find it unthinkable to live apart"( Hayat, 5)
The Article 8 appeal was dismissed but the Upper Tribunal found that:
21... the determination in the present appeal is legally flawed. In particular, the Immigration Judge was wrong to conclude that the Chikwamba principle could be rendered inapplicable to the facts of the case before her, on the basis that the appellant "is not seeking leave to settle in the United Kingdom as a spouse".

The Tribunal sets out the relevant case law which has followed Chikwamba and, in accordance with those authorities, finds that the principle in Chikwamba does not 'operate with unwavering force, regardless of the circumstances of the particular case' (18). Findings of fact must be made.

Nonetheless:
23 The significance of Chikwamba, however, is to make plain that, where the only matter weighing on the respondent's side of the balance is the public policy of requiring a person to apply under the rules from abroad, that legitimate objective will usually be outweighed by factors resting on the appellant's side of the balance.
24. Viewed correctly, the Chikwamba principle does not, accordingly, automatically trump anything on the State's side, such as a poor immigration history. Conversely, the principle cannot be simply "switched off" on mechanistic grounds, such as because children are not involved, or that (as here) the appellant is not seeking to remain with a spouse who is settled in the United Kingdom.

25. Like the absence of children, that last factor may be one which diminishes the force of the principle; but whether it will do so depends upon an assessment of the facts. For example, if the position disclosed by the evidence had been that the appellant's wife was due to finish her studies only a few weeks after the date of the hearing, and was intending to return to her country of origin, and the evidence was such that she did not need the appellant to be present with her while she finished her studies and prepared to leave, then the Chikwamba principle would have had nothing to add to the appellant's case. The actual facts of the present case, however, were very different. As we have already seen, the appellant's wife had the best part of a year to go before the end of her first tranche of the ACCA course. She has now been given leave to remain until 2014 in order to complete that course. There is no suggestion that her practical and emotional need for her husband to be with her has diminished in any respect.

The guidance given by the Tribunal in Hayat about the application of the Chikwamba principle makes clear that it applies whether or not there are children and whether or not there is an ultimate intention to settle. Of course, where there is a poor immigration history that can be relied on by the Secretary of State and would have to be addressed by the Appellant. But reminding decision-makers that an Article 8 claim cannot be defeated solely by reference to a policy of making applicants apply from overseas, should focus everyone's attention on the actual circumstances of an individual's family and private life and the quality of the evidence relied on by the parties. It also suggests the utility, in appropriate cases, of providing evidence to show that all the requirements of a given Immigration Rule are met (except the possession of entry clearance) as this will be a factor resting on the Appellant's side of the balance.

Should you wish to submit an application from within the UK then I would suggest that yous ensure that you meet all the requirements for a spouse visa and then apply ie by showing disability living allowance or disability carers allows or by meeting the £18,600 gross income threshold. This is because then the only point of refusal will be whether the applicant should be inside the UK when she applies or outside of the UK.

I hope this answers your question, if so kindly rate my answer positively so I can get credited for my time.

Kind regards
Customer: replied 1 year ago.

Can you let me know who to contact at the Home Office to ask them to exercise discretion, and allow an application from the UK to be accepted, and how to apply?

Expert:  UK_Lawyer replied 1 year ago.
Thank you for your reply.

You do not need to ask anyone, all you need to do is submit the application with evidence of your situation and the child's birth certificate and explain the situation in the covering letter, make it as detailed as possible.

Please use form FLR M to submit the application:

http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/spouse-cp/applying-in-uk/

I hope this answers your question, if so kindly rate my answer positively so I can get credited for my time.

Kind regards
UK_Lawyer, Solicitor
Satisfied Customers: 2058
Experience: I am a qualified solicitor and an expert in UK law.
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