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UK_Lawyer
UK_Lawyer, Solicitor
Category: UK Law
Satisfied Customers: 2128
Experience:  I am a qualified solicitor and an expert in UK law.
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I am a British subject, marrying a Mauritian subject in a few

Resolved Question:

I am a British subject, marrying a Mauritian subject in a few weeks. I do not meet the £18,600 spouse's visa Financial Requirement.
Can I apply under Article 8 of the Human Rights Act for my fiance to stay in the UK.
Is there any other solution?
Thank you.
Shyam Mehta
Submitted: 1 year ago.
Category: UK 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.

Would you be wanting for her to remain in the UK on the basis of your relationship or under any category?

Kind regards
Customer: replied 1 year ago.

I do not mind how she stays in the UK, but as my spouse is a hot possibility. Another friend of mine knows how to get rights to stay in Spain (for a sum of money unfortunately, I do not know the details yet) in which case my spouse Indira could stay in the UK as a (citizen?) of Spain.


Thanks

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

Does your spouse have a visa at this moment?
Does he hold a equivalent of a Bachelor's degree?

Kind regards
Customer: replied 1 year ago.

for UK lawyer


She has a students visa until 2015. However we do not want her to study partly because it is costly and partly because we want to spend time together. She does not hold a Bachelor's degree (but her current studies are for a degree course, this first year has now terminated and we do not want to continue with the course).

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

This does seem to somewhat limit your options and what she can apply for. If she does not want to study and does not hold at least a UK bachelor's degree then she would not be able to apply for a tier 2 migrant visa either. Unfortunately this does not leave you with much options.

The fact is from what you have mentioned she can not apply on her own basis only on basis of being in a relationship with you. Unfortunately this limits your options to just a fiancé visa.

I do acknowledged the fact that you have mentioned human rights in your question however, this right has since 9 July 2012 has become a qualified right and the ukba has somewhat decided to constrain this right and limit its scope. In this instance she would not be able to apply under the human rights act because asking you to meet the financial requirements for the spouse visa is not breaching your rights that is why any application made which doesn't meet the requirements will be refused and the refusal would not be a breach of the human rights.

I would therefore suggest that you try and meet the requirements for a spouse visa or your other option would be for both you and your partner to go and live in a European country with you working for a year and then returning to the uk. In this instance your partner would be granted a eea family permit upon arrival.

I am sorry but because of the information mentioned your options are very limited, and I am unable to give you an option which is appealing.

I hope this answers your question, if so kindly rate my answer positively. If however, you feel that the answer does not cover all the points raised in your question, please DO NOT rate my answer negatively, I will be happy to answer further question until you are satisfied with my answer.

Kind regards
Customer: replied 1 year ago.

Well I have another question, in relation to the Financial Requirement of £18,600 pa. In February this year 2013 I took an early retirement option for a private pension of mine. It gave me a lump sum in total of £40,000 or so and an additional pension of about £5,000 pa. In total I have savings of £42000 from Feb and an income from Feb of £8300 pa. The rules say that one subtracts £16,000 from one savings, and divides by 2.5 to get the income equivalent. If one does this I have an equivalent income of just over £18,600 pa, but only from Feb 2013. Hence I could apply for a spouse's visa from Feb 2014 (there is a one year rule for income and a six months' rule for savings). But someone has suggested to me that because the pension is secure, I should be able to count the pension even in advance of it coming into payment. Hence I would meet the Financial Requirement rule (I just need to tell them the rate of pension now and the savings now).


What do you think about this argument?


Thank you.


Shyam

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

This would not be something which you will be able to use as you will not have physically received the pension in to your account and therefore even though it is a secure pension you will not be able to show bank statements which shows deposits of the pension and the income coming in to your account.

In respect of you earning the 18600 it is correct that from February 2013 your income would have reached the required amount, but this amount only needs to be earned for 6 months not 1 year as you have mentioned.

I hope this answers your question, if so kindly rate my answer positively. If however, you feel that the answer does not cover all the points raised in your question, please DO NOT rate my answer negatively, I will be happy to answer further question until you are satisfied with my answer.

Kind regards
Customer: replied 1 year ago.

Thanks for your reply. Another supplementary question, about Article 8 Human Rights applications. A solicitor I saw says that this route takes 6-12 months to reach a conclusion and that he has an 80% success rate with it. Appeals only take a few weeks and he is very confident of getting approval on appeal. He says that one gets a 2.5 yr right of stay with this route but that one has to keep reapplying three more times, so that the full right to remain is only achieved after 10 years rather than 5 years with the Spouses’ Visa route. He said that the Human Rights route rules were changed recently but that what I have described here is the current (4 3 13) position. I understand your answer that the Human Rights route is not possible in our case, but could this be on a strict reading of the law rather than actual practicalities of UKBA or whoever in real life?


Thank you


Shyam

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

That the ukba have restricted the human rights act which I agree would not be very practical in real life or something which would accommodate real life situations. I can only comment on the rules as I see them and what they state. Should you wish to apply and try and see if you can persuade an immigration officer to grant your partner permission to remain then this would be your decision.

The fact is that I can not say that the solicitor has or has not been successful, but in either case it is a risk and applications of this sort can take up to 1 year if not more to decide.

A lot of factors need to be determined to grant individuals leave to remain under the human rights route, in your case it would be very difficult to argue such a case.

I hope this answers your question, if so kindly rate my answer positively. If however, you feel that the answer does not cover all the points raised in your question, please DO NOT rate my answer negatively, I will be happy to answer further question until you are satisfied with my answer.

Kind regards
UK_Lawyer, Solicitor
Category: UK Law
Satisfied Customers: 2128
Experience: I am a qualified solicitor and an expert in UK law.
UK_Lawyer and 4 other UK Law Specialists are ready to help you
Customer: replied 1 year ago.
Hello
If I ask a supplementary question do I get charged?

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