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Thomas
Thomas, Lawyer
Category: Immigration Law
Satisfied Customers: 7620
Experience:  UK Lawyer holding practising certficate for England & Wales.
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Are the government breaching my human rights by refusing my

Resolved Question:

Are the government breaching my human rights by refusing my Chinese wife leave to remain in the UK
Submitted: 3 years ago.
Category: Immigration Law
Expert:  Thomas replied 3 years ago.
Hi,

Thanks for your question.

What nationality are you please?

Where is your wife at the moment?

Kind regards,

Tom
Customer: replied 3 years ago.

I am a British Citizen my wife is Chinese and my wife is living with me in England and has been since December 2006

Expert:  Thomas replied 3 years ago.
Okay.

Does your wife not have leave to remain at the moment?

I presume that you have applied for leave to remain on the basis that she is your spouse, was this application refused and what were the reasons for the refusal?

Kind regards,

Tom
Customer: replied 3 years ago.

Yes I applied on the grounds that she is my spouse refused because she has not passed the citizens test I do not meet the income requirement under 2008 law

Expert:  Thomas replied 3 years ago.
Ok.

Are you employed? If so, what is your salary?

If you are unemployed, are you in receipt of a disability related benefit?

Kind regards,

Tom
Customer: replied 3 years ago.

I am a OAP with a total income of £1200 per month

Expert:  Thomas replied 3 years ago.
I see, but you are not in receipt of a disability related benefit. Is this correct?
Customer: replied 3 years ago.

no I am not in receipt of a disability benefit

Expert:  Thomas replied 3 years ago.
Hi,

Thanks. Drafting your answer now. 5 mins please.

Kind regards,

Tom
Expert:  Thomas replied 3 years ago.

Hi

Thank you for your question and patience, I’m Tom and I’ll try to help you.

UK citizens have a right to a family and private life under the Human Rights Act 1998. However, it is quite a misunderstood piece of legislation. The right in question is a “qualified” right, rather than an “absolute”. This means that in some circumstances the government is allowed to make exceptions and derogations from the right if it is in the wider public interest.

One of the exceptions that has been made is to impose the financial requirement for spouses of UK nationals. It is very controversial but at the moment it remains law.

Your case is one of the cases where the rules are the most harsh. Under the rules, they can refuse a spouse visa on this basis if::-
1. You are not in receipt of £18600 per annum of income,
2. You do not have cash savings of £62, 500.00
3. You are not in receipt of a disability related benefit

This means that your option are limited. Your options are therefore:-
1. See if you can supplement your income with a job so that you earn above the threshold salary amount

2. Apply on the basis of EEA rights under the Surinder SIngh ruling. However, in order to do this you and your wife would have to relocate to another EEA country and your wife would have to work for at least 3 months. ONce she has done this you could apply for an EEA family permit to return to the UK. IF you do this then you would not have to meet the financial requirement because she would be treated as an EEA citizen, rather than a UK citizen requiring to meet the spouse visa requirements..

3. Wait and keep an eye on the rules to see if the financial requirement is challenged and removed. Eventually it will be but it's going to take a considerable time because immigration is such a politically hot topic. A change of government is probably the earliest time that the issue might be revisited.

I am sorry the options are so restrictive but they are the rules, which I personally (as a lawyer) do not agree with.

My view is that your human rights are being violated but under law the government is allowed to do so until the law is changed.

My goal is to provide you with a good service. If you feel you have received anything less, please reply back as I am happy to address follow-up issues specifically relating to your question.


Kind regards,


Tom
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