Q: I applied for a UK Spousal Visa from Australia to come to the United Kingdom as the husband of a British Citizen however the application was refused because the British High Commission said that our marriage was not ‘subsisting’. Can I appeal against the decision and if so what is the process and what do I have to do to be successful?
A: You can of course appeal against the decision and the appeal must be lodged within 28 days of the date of decision. However please note that the Appeal Form has to be completed correctly and all of the grounds upon which you wish to rely upon must be included in the form. If any grounds are missing you will not be able to introduce them later.
Case law says that the subsisting marriage requirement means more than just legally subsisting – the marriage has to be an ongoing, live one. It is therefore important to show that the two parties are regularly in contact, whether that is by telephone, text message, correspondence or e-mail. Evidence of visits is very helpful, including passport stamps, photos and then any other evidence of activities together.
If an appeal is necessary then the date of the assessment of the facts at the appeal is the date of the original refusal. This means that evidence arising after the original refusal is unlikely to be relevant, unless it clearly casts light on the facts at the time of the refusal. The burden of proof rests with the applicant i.e. we have to prove our case. Failing to produce this sort of evidence means that it is very difficult to win a case.
I would strongly advise you to seek independent legal advice on your appeal because appeals such as yours can be very difficult however with the appropriate expert advice it is more than surmountable.
We as an OISC organisation have Level 3 expert advisors who will be more than able to assist you.
JP Breytenbach | Director of Breytenbachs Immigration Consultants
www.bic-immigration.com | info@bic-immigration.com
