Post
by avjones » Sun Dec 09, 2007 11:53 am
Then potentially you have problems.
Firstly, the fact that you could support all of you out of the benefits payable only to you isn't relevant - you need to show that you would have the same amount of money available to you as a couple with a 16 year old would have on benefits.
Third party support has recently been ruled out by the Asylum and Immigration Tribunal for spouse visitors.
Also, would your accommodation be big enough? The existing place you have, and have benefit for, would that be enough space for the 3 of you?
It doesn't have to be the UK-based spouse's income. The earning or potential earning of the foreign spouse can be considered, but again it would need to be enough to replace the benefits the UK spouse would not get, as a result of his wife working.
For example, in the case of MK (Adequacy of maintenance – disabled sponsor) Somalia [2007] UKAIT 00028 the Tribunal considered the case of a disabled sponsor and said:
15. That extract fortifies our view that where there is reference in the authorities to income support, that should be taken to include any enhanced income support and other benefits arising, for example, out of any disability. Such enhanced benefit is provided by the state because it is needed. A level of income below that enhanced level, would not be adequate for such an individual with those disabilities.
16. The minimum required by the appellant and her spouse to maintain themselves is the amount paid to the appellant plus the extra amount that would be paid to them as a couple (ie £103 + £32.65 = £135.65). In other words, the sponsor needs all that she receives and the appellant cannot adequately be maintained from the sum presently received by her.
17. If the disability living allowance could have been discounted as not necessary for the sponsor to live on, the appellant could have succeeded because the amount needed for him is £32.65, which is 35p per week less than the Disability Living Allowance.
18. Disability Living Allowance is there to help towards necessary care and necessary extra mobility expenses arising from the disability. It is awarded after the completion of a complex form and an assessment, often including a medical assessment. Even if the sponsor did not use all of it (and it is only £33.00 per week) it has not been demonstrated that she does not have a need for it. For the reasons adumbrated in KA it is inappropriate to disregard that benefit even if the sponsor was claiming to live frugally and not to use it.
The case of AM (Ethiopia) [2007] UKAIT 00058 considered support from a third party (someone other than the husband or wife) and ruled it out, saying:
21. Indeed, the structure and wording of paragraph 281 of the Rules focuses the requirements of the Rules on the two individuals who wish to benefit from them; the spouse or civil partner with rights to be in the UK, and the spouse or civil partner who seeks to join that person. The parties must have met (281(ii), they must intend to live permanently with each other and the marriage must be subsisting (281(iii). The accommodation must be adequate and owned and occupied exclusively by one or other of the parties to the relationship (281(iv). This all points clearly to the need for the two persons involved to satisfy the Rules personally without reference to any third parties. So with maintenance. Paragraph 281(v) in our judgement requires the resources to be those of the parties alone.
I am not, and cannot, offer legal advice to particular people. I can only discuss general areas of immigration law.
People should always consider obtaining professional advice about their own particular circumstances.
