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Upper Tribunal judgment on the spouse visa rules under Appendix FM, Sabir

In the recently promulgated decision in Sabir v SSHD (Appendix FM – EX.1 not free standing) [2014] UKUT 00063 (IAC) the Upper Tribunal addressed the new spouse visa rules under Appendix FM and the role of the so called “Exception”, EX.1 which forms part of Appendix FM and extends, in certain circumstances, to parents of settled children and partners of persons settled in the UK who would have “insurmountable obstacles” to family life outside the UK.

The tribunal ruled that the “Exception” does not have a free standing meaning, but applies only in conjunction with other parts of Appendix FM.

In other words, when applying for a partner’s visa the Applicant may be exempt from financial requirements of Appendix FM in reliance on the Exception clause, subject to meeting other requirements of the Appendix. The most controversial of these requirements states that the Applicant should not be in the UK as a visitor or with leave granted for a period of six months or less, although a concession is made for those who are in breach of the immigration laws, or have been given temporary admission or temporary release from immigration detention.

It is not clear where the parliament intended a harder deal for visitors than migrants with no status when it comes to assessment of the right to family life, but this is the interpretation now confirmed by the Upper Tribunal in Sabir. This interpretation will now be binding on the lower courts.

More bad news follows in the judge’s analysis of the family’s Article 8 rights outside the immigration rules, which reads as an extra pin in the coffin of Human Rights for migrants.

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