The following requirements are mandatory under the Immigration Rules:
(a) The applicant must be outside the UK.
(b) The applicant must not be liable to any of the grounds of SUITABILITY stated in the Rules.
(c) The applicant must satisfy all of the requirement of ELIGIBILITY as stated in the Rules.
The eligibility requirements has the following key branches:
(i) Financial requirement
(ii) English language requirement
(iii) Accomadation reqquirement
(iv) Tuberclulosis Test Certificate
(d) The applicant must make a valid application for the settlement, completing the required form and paying the visa fee.
SUITABILITY REQUIREMENTS FOR UK SETTLEMENT VISA
An applicant for entry clearance for settelment visa will be refused on grounds of suitability if any of the following apply:
(1) The secretary of state has personally directed that the exclusion of the applicant from the UK is conducive to the public good.
(2) The applicant is currently the subject of a deportation order;
(3) The applicant has failed without reasonable excuse to comply with a requirement to
(a) attend an interview;
(b) provide information;
(c) provide physical data;
(d) undergo a medical examination or provide a medical report;
(4) It is undesireable to grant entry clearance to the applicant for medical reasons;
(5) The applicant left or was removed from the UK as a condition of a caution issued in accordance with section 22 of the Criminal Justice Act 2003 less than 5 years prior to the date on which the application is decided;
(6) Whether or not to the applicants knowledge false information, representation or documents have been submitted in relation to the application or there has been a failure to disclose material facts in relation to the application;
(7) Failure to pay any outatanding NHS charges of at least £1000 incurred during previous visits to the UK;
(8) Failure to provide maintanance and accomodation undertaking if requested or required.
THE PUBLIC GOOD THRESHOLD
SECTION S-EC OF APPENDIX FM provided numerous instances where an applicant can be declared unsuitable to be issued entry clearance on the basis that such a visa denial is conducive to the PUBLIC GOOD. They include where the applicant has:
(1) been convicted of an offence and sentenced to a period of imprisonment of at least 4 years;
(2) sentenced to a period of imprisonment of at least 12 months but less than 4 years; unless a period of 10 years hass passed since the end of the sentence or;
(3) sentenced to a period of imprisonment of less than 12 months unless a period of 5 years has passed since the end of the sentence.
An applicant who is caught in the above provision could still be granted entry clearance in ‘
‘exceptional circumstances’ where public interest is outweighed by ‘compelling factors’ or where a refusal would be contrary to the Human Rights Convention or the Convention and Protocol relating to the status of Refugees.
(4) Where the applicant’s conduct, character, associations or other reasons make it undesirable to grant entry clearance;
(5) Where within the 12 months prior to the date on which the application is decided, the applicant has been convicted of or admitted an offence for which they recieved a non-custodial sentence or other out of court disposal that is recorded on their criminal record;
(6) Where in the view of Secretary of the State, the applicant’s offence has caused serious harm or where the applicant is considered a persistent offender who shows a particular disregard for the law.
ELIGIBILITY FOR ENTRY CLEARANCE AS A PARTNER (SETTLEMENT)
Under the UK Immigration rules, an application must meet both the suitability and eligibility requirements. We have previously outlined the content of the rules in relation to the suitability reuirement.
The ELIGIBILITY REQUIREMENT has the following major components:
(1) RELATIONSHIP REQUIREMENT
(2) FINANCIAL REQUIREMENT
(3) ENGLISH LANGUAGE REQUIREMENT
(4) TUBERCLULOSIS TEST REQUIREMENT
RELATIONSHIP REQUIREMENTS
The applicant’s partner must be:
(a) a British citizen or
(b) present and settled in the UK or
(c) in the UK with refugee leave or with humanitarian protection;
(d) applicant and the partner must be aged 18 or over at the date of application;
(e) applicant and partner must not be within the prohibited degree of relationship;
(f) the applicant and partner must have met in person;
(g) the relationship must be genuine and subsisting;
(h) the marriage or civil partnership must be real;
(i) if the applicant is a fiance'(e) or proposed civil partner, they must be seeking entry to the UK to enable their marriage or civil partnership to take place;
(j) any previous relationship of the applicant or their partner must have broken down permanently unless it is a relationship which falls within Partnership 278(i) of the Rules;
(k) the applicant and their partner must intend to live together permanently in the UK.
FINANCIAL REQUIREMENTS
In order to meet the financial requirement of the Immigration rules, the sponsor needs a gross income of at least £18,600 per annum. This income level is caliberated upwards depending on the weather non-British or non EEA child/ children/ dependants are also applying.
The UK sponsor meets the financial requirements usually through either salaried employment or self employment in the UK.
SALARIED EMPLOYMENT: If the sponsor is relying on salaried employment, all of the following documents must be provided:
(a) pay slips convering a period of 6 months prior to the date of the application,
(b) a letter from the employer(s) who issued the pay slips confirming (i) the person’s employment and gross annual salary (ii) the lenght of their employment (iii) the period over which they have been or were paid the level of salary relied upon in the application (iv) the type of employment (permanent, fixed-term contract or agency)
(c) personal bank statement corresponding to the same period as the payslips showing the salaries has been paid into the account in the name of the person
SELF EMPLOYMENT: All of the following evidence must be provided
(a) Evidence of the amount of tax payable, paid and unpaid for the last full financial year.
(b) The following documents for the last full financial year, or for the last two such years (where those documents show the necessary level of gross income as an average of those two years):
(i) Annual self-assessment tax return to HMRC (a copy or print-out); and
(ii) Statement of Account (SA300 or SA302).
(c) Proof of registration with HMRC as self- employed if available.
(a) Evidence of the amount of tax payable, paid and unpaid for the last full financial year.
(b) The following documents for the last full financial year, or for the last two such years (where those documents show the necessary level of gross income as an average of those two years):
(i) Annual self-assessment tax return to HMRC (a copy or print-out); and
(ii) Statement of Account (SA300 or SA302).
(c) Proof of registration with HMRC as self- employed if available.
(d) Each partner’s Unique Tax Reference Number (UTR) and/or the UTR of the partnership or business.
(e) Where the person holds or held a separate business bank account(s), bank statements for the same 12-month period as the tax return(s).
(f) Personal bank statements for the same 12-month period as the tax return(s) showing that the income from self-employment has been paid into an account in the name of the person or in the name of the person and their partner jointly.
(g) Evidence of ongoing self-employment through evidence of payment of Class 2 National Insurance contributions, or (where the person has reached state pension age) through alternative evidence (which may include, but is not confined to, evidence of ongoing payment of business rates, business-related insurance premiums, employer National Insurance contributions or franchise payments to the parent company).
(h) One of the following documents must also, be submitted:
(i) (aa) If the business is required to produce annual audited accounts, such accounts for the last full financial year; or (bb) If the business is not required to produce annual audited accounts, unaudited accounts for the last full financial year and an accountant’s certificate of confirmation, from an accountant who is a member of a UK Recognized Supervisory Body 1(as defined in the Companies Act 2006); (ii) A certificate of VAT registration and the VAT return for the last full financial year (a copy or print-out) confirming the VAT registration number if turnover is in excess of £79,000 or was in excess of the threshold which applied during the last full financial year; (iii) Evidence to show appropriate planning permission or local planning authority consent is held to operate the type/class of business at the trading address(where this is a local authority requirement);
Please note that the financial requirement as discussed above is not exhaustive and did not cover the entire field. It is recommended to consult an immigration solicitor for a complete picture of the requirement.
English Language Requirement
The applicant must provide specified evidence that they:
(a) are a national of a majority English speaking country listed in paragraph GEN.1.6.; (Nigeria is not on the list);
(b) have passed an English language test in speaking and listening at a minimum of level A1 of the Common European Framework of Reference for Languages with a provider approved by the Secretary of State;
(c) 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
(d) are exempt from the English language requirement under paragraph E-ECP.4.2.
The applicant is exempt from the English language requirement if at the date of application:
(a) the applicant is aged 65 or over;
(b) the applicant has a disability (physical or mental condition) which prevents the applicant from meeting the requirement; or
(c) there are exceptional circumstances which prevent the applicant from being able to meet the requirement prior to entry to the UK.
OUTCOME OF APPLICATION FOR ENTRY CLEARANCE AS A PARTNER
If a settlement application (to enter as a partner) is successful, the applicant will be granted entry clearance for an initial period not exceeding 33 months or a period not exceeding 6 months where the applicant is a fiance'(e) or proposed civil partner. Within this period, a successful spousal partner can work but without recourse to the public funds. A fiance'(e) or proposed civil partner is prohibited from employment or public funds.
If the application is unsuccessful, the applicant will need to carefully consider the next line of action which is usually whether to appeal or to reapply.
A successful application for entry clearance as a partner would in the fulness of time enable the applicant to apply for indefinite leave to remain and ultimately for British passport.
It must be emphasized that the information above is only a guide and not exhaustive. Consultation with an experienced professional would always be helpful.
Eddie Onyeka is the Founding Partner of Harvard Consults, a leading Immigration Attroney in Nigeria