Spouse Visas for Overstayers

Spouse Visas for Overstayers

If you are a foreign national married to a spouse who is either British or has Indefinite Leave to Remain (‘ILR’) then a way of qualifying for a UK visa is to apply under the spouse route. The main spouse visa requirements, which are prescribed in Appendix FM to the Immigration Rules, are as follows: 

  1. you and your spouse must collectively earn a minimum of £18,600 (plus additional amounts for foreign national children);
  2. you must have a valid English language certificate;
  3. you must not have any criminal convictions or other character problems; 
  4. you must have adequate maintenance;
  5. you must meet the Immigration Status Requirement, which means that you must not be in the UK unlawfully (i.e. with no status or having overstayed) or on a visitor visa 

Our immigration law barristers are often approached by clients who do not meet the Immigration Status Requirement but are anxious at the thought of having to leave the UK (and therefore their partner) to make an entry clearance application from overseas, with all the uncertainty that brings.

The Home Office generally refuses UK spouse visa applicants who do not meet the Immigration Status Requirement. Such applicants will have to submit an immigration appeal to the First-tier Tribunal (Immigration and Asylum Chamber) and argue their case before an immigration judge.

The key to preparing an immigration appeal in such circumstances is to ensure that there is evidence of compliance with all the other Requirements in Appendix FM except for the Immigration Status Requirement. If this is done, the judge might conclude that it would be contrary to the immigration applicant’s human rights to require them to leave the UK to make an application from overseas. This result is not guaranteed, but our immigration appeal barristers have succeeded in helping many clients in this way. 

If you need immigration advice in relation to your UK visa application or have a Tribunal appeal, then contact one of our immigration barristers.

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