Why the location of your Nikkah matters for UK Immigration?

What is a Nikkah?

The word “Nikah” has been derived from an Arabic word ‘nikhun’ which means to bring together and to absorb. If a man and a woman are to become absorbed in each other, a basic and fundamental condition will be the mutually agreeing of both the parties to perform the nikah, which is relied upon to unite them as life partners for the rest of their lives.

They should, hence, be sure about the conditions, obligations and rights that apply to them in a marriage. In Islam marriage is a shared and lawful contract in which the two parties concur about every single part of the agreement. The willingness of both man and woman is necessary, without their assent the nikah is invalid. The nikah ought to be performed before the guests as a formal declaration. The agreement upon “Haq Mehar” is also one of the conditions of nikah and ought to be settled upon by both the parties. After the lady gives her consent, a prayer (khutba) of nikah has been performed by a religious person afterwards everyone gives best wishes to both the life partners. The measure of haq mehar settled upon ought to likewise be declared. After all the formalities, the man and woman have the privilege to begin their life together lawfully. There are some additional unwritten conditions of the nikah which are comprehended.

 

Is a Nikkah in Pakistan recognized by British Law?

Several cases have been seen regarding the issue that whether the marriage performed in overseas countries is valid in UK under the British Law or not. A lot of couples from various countries including Pakistan have asked us about the validity of their marriage in UK. Here you will find the answer to this query.

Let’s be specific, and try to answer the question, is a marriage (Nikkah) in Pakistan recognized by the British Government under British law? Before finding the answer to this specific question, another question should be answered first which is, whether the marriage is legally registered in that specific country where the marriage had been performed or not? If the answer is yes, then we will go further to our first question. Under the terms of the UK’s Foreign Marriages Act 1892, marriage (Nikkah) performed in Pakistan will be recognised by the British Law if it would be legally registered in Pakistan. The High Court (London) in 1967 also looked at this issue and decided that they would be recognised.

 

Is a Nikkah in the UK recognized by British Law?

In Sharia Law, marriage is seen as an agreement where two people consent to live as a couple as per the direction contained in the two essential sources of the Sharia, the Qu’ran and the Sunnah of the Prophet Muhammad (SAW).

In spite of the fact that Muslims trust that a nikah or marriage contract performed in the UK is substantial according to God, but it is not a legitimate marriage under British Law. The Nikkah, although valid in the Islamic sense, is certifiably not a legitimate marriage in its own privilege in the UK. It is an exclusively religious ceremony and isn’t acknowledged in the UK as a lawful function.

 

What are the immigration laws concerning marriage and spousal visas to the UK?

There are various laws and requirements which should be fulfilled before applying for the spousal visa in UK. Here are is a concise list:

  • Your age and your spouse’s age must be 18+ years.
  • You have to get married legally and according to British law.
  • You should expect to live respectively for all time.
  • You should have enough money to help yourselves and your dependents.
  • Your supporting partner must earn more than £18,600 every year or enough saving to support you. The financial requirement is higher if they also have children to be supported.
  • You should have appropriate accommodation for you, your life partner and any dependents.
  • You must also fulfil the English language requirements.

What problems arise when only an Islamic marriage is entered (and there is no civil ceremony)?

In British law, a marriage, performed as only a religious ceremony in UK, is not considered as a valid marriage. You have to fulfil all the legal requirements along with the religious ceremony. If someone only relies on religious function and considers it as a whole or doesn’t perform a civil ceremony, they face a lot of problems. First of all their marriage is not recognised legally so they can enjoy all the facilities as the married couples of UK.

Another main problem which arise when only Islamic marriage is entered and there is no civil ceremony is that if the marriage does not work, women who have just had a nikah (Islamic ceremony) can’t go to the family court to look for a division of assets, for example, the family home, property and life partner’s pension. It can also bring about some other major issues. Therefore, it is necessary to register the marriage according to British law along with religious registration. Talley and Barrow are here to help you in all these aspects.

UK Spousal Visas, Financial Requirements and Article 8 ECHR

Let’s start with the basics.  So what exactly is a spousal visa?

 

A spousal visa allows a British Citizen or “Settled Person” (that’s a non-British citizen with ILR or Permanent Residency) to bring a non-EEA spouse, partner, fiancé or civil partner to the UK for a period of more than 6 months.

 

The spouse will be considered a “dependent” as his/her right to join you is practically based on your own right to stay in the U.K and you will be the “sponsor”. [1]

 

Spousal visas are valid for 33 months, with the possibility of renewing it for an additional 2 years and 6 months.  The renewal of your spousal visa is known as FLR-M (Further leave to remain – married).

 

In order for the spousal visa to be issued and your spouse or partner to join you in the UK, you will have to meet the financial requirement of earning the minimum amount £18,600, before tax. In the case of your spouse and one child joining you, the minimum amount is £22,400 with £2,400 required on top of that of each additional child.[2]

 

This financial requirement can be met through different means:

  • Salary
  • Self-Employment
  • Pension
  • Non-salaried employment

 

Some of the additional means of securing the minimum financial requirement are, income generated through rent or share, maternity/paternity/ adoption/sick pay and cash savings which need you be at £16,000 and on your name and under your control for at least six months.[3]

 

There is no need to meet the financial requirement in case you have a benefit such as Attendance Allowance, Disability Living Allowance, Severe Displacement Allowance, Personal Independence Payment, Industrial Injuries Disablement Benefit, Bereavement Benefits, Armed Forces Independent Payment or Guaranteed Income Payment under the Armed Forces Compensation Scheme and Constant Attendance Allowance, Mobility Supplement or War Disablement Pension under the War Pensions Scheme.

 

It should be noted that the sponsor can get more than one benefit, as long as he/she can show that he/she receives enough money to support the dependent as well.[4]

In case that you don’t comply with the financial requirement and you are facing problems with reuniting your family, a solution may be possible either though Article 8 ECHR or Working Outside the Rules Applications.

 

Article 8 ECHR 

Artilce 8 of the European Convention for Human Rights stipulates that “everyone has the right to respect to his private and family life, home and correspondence” and that the public authorities are not allowed to intervene with the exercise of this right unless they are trying to protect the “interests of the national security, public safety or the economic well-being of the country, to prevent disorder or crime, to protect health and morals or the rights and freedoms of others”. [5]

 

Since British courts are not bound by the ECHR, how exactly can the citizens rely on Art. 8 when the financial requirement for the spousal visa is not fulfilled?

According to paragraph EX.1 of the Home Office Immigration Rules, Art. 8 ECHR applies upon the Immigration Rules, for the spouses who already live in the UK and hold a visa of a different category which is about to expire or who do not have a visa at all and need to apply either for a new one or for extension but are unable to fulfill the minimum financial requirement.[6]

 

In a situation where  a British citizen or “settled person” wishes for his/her spouse to get the spousal visa, he/she will have to illustrate that their family life would be affected by “insurmountable obstacles” in the case that the spouse’s or partner’s application was denied and was forced to return to their home country.[7] It must be noted that the term “insurmountable obstacles” refer to those obstacles that would be impractical to overcome rather than impossible. For instance, an insurmountable obstacle would be if a British citizen who has lived and worked in the UK for his whole life, as a result of not being able to be with his/her spouse, was forced to move instead in a place where the language barriers will make it impossible to relocate. The same argument applies also in the case that the couple has little children and moving to another county will make it impractical for them to adapt to the new standard of life and have a stable childhood.[8]

 

As soon as the existence of “insurmountable obstacles” and accordingly paragraph EX.1 have been established that apply in the case in hand, then the Right to family life as described in Article 8 ECHR takes presence, regardless of whether the financial requirement for the spousal visa is fulfilled.

 

What that means in practice is that the spouse/partner will be granted the right to remain in the UK, under the “10-year family route” which entitles them to “2,5 years” segments of leave, able to be extended in case they continue to fulfil the requirements. After the 10-year period of continuous leave is completed, the spouse/partner will most probably be eligible to apply for an indefinite leave to remain in the UK.  However, it should be noted that the final decision regarding the grant of the indefinite leave to remain depends on the discretion of the Home Office and the evidence required in each case.[9]

 

So, in case that your 10-year period is soon coming to an end, you must ensure that the legal requirements for applying for the indefinite leave are still the same and that no legal amendments have taken place that may affect your personal situation.

 

Finally, you should make sure that the documents backing your case are both correct and enough to support all the information mentioned in your application, as not doing is the most common reason for applications being declined.

 

Working Outside the Rules Applications

Another way for a defendant to be granted the spousal visa, in case that a sponsor is not able to comply with the financial requirement of the £18,600, is to request that the Home Office exercises its discretion to grant a permit to leave outside of the Immigration Rules.[10]

 

These rules, which were also mentioned in the section above, were adopted by the Secretary of State of the Home Department in 2012, in order to define the circumstances under which Art 8 ECHR, will apply. Even though, discretion is possible in some sections of the Rules, in most cases the requirements have to be met with the greatest possible detail or otherwise the application will be rejected automatically.[11]

 

In case, however, that the applicant does not fulfil any of the requirements of the Immigration rules, the Secretary of State of the Home Department has the discretion to grant permits of leave to the applicant outside of the Rules of Immigration. It should be noted though, that for this discretion to be exercised the circumstances of the case must be compelling and other issues of the case, such as the human rights of the specific individual and the other family members, should be examined carefully.[12] For instance, a British citizen who got married to a non-European citizen and have two children which are both British, has been unemployed for almost a year now and for that reason cannot sponsor his spouse’s application.

 

Since the financial condition of the British citizen constitutes a unique situation and children being raised without their mother while their father cannot take sufficient care of them, is considered a significant violation of their rights, is quite possible that an application working outside of the rules might be successful. What is important to keep in mind in this case, is that the key for your application here is to be able to prove that the circumstances of the case have a unique element and that the human rights of the whole family (or some family members) might be threatened.

 

Once again providing the necessary and correct evidence is extremely crucial and can determine the outcome of your case.

 

Finally, the applicant can request the Home Office to grant leave outside the Rules by publishing a concession.[13] That is a statement of policy or practice which explains or expands the Immigration Rules but never limits them. Concessions are made ad hoc as a response to a legal issue arisen or due to a difficulty related to an Immigration Rule in force. Even though requesting a grant this way still constitutes one of the possibilities and you should be aware of it, at the same time the reality is that concessions have been reduced significantly these past few years and only a few of them remain valid.[14]

Thus, while there is a financial requirement in order for the spousal visa to be issued, you should not be discouraged if you cannot fulfil it. The three options described above aim to assist you to be granted leave, according to your personal circumstances, insomuch as you have valid claims which you can support by providing the necessary evidence.

[1] Citizens advice, ‘Getting a visa for your spouse or partner to live in the UK’ (Citizens Advice, 2018)<https://www.citizensadvice.org.uk/immigration/visas-family-and-friends/getting-a-visa-for-your-spouse-or-partner-to-live-in-the-uk/> accessed 29 April 2018.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] European convention of human rights, ‘Wwwechrcoeint’ (European Convention of Human Rights, 2018)<https://www.echr.coe.int/Documents/Convention_ENG.pdf> accessed 29 April 2018.

 

[6] Gov.uk, ‘Immigration Rules’ (Gov.UK, 6 April 2018) <https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-fm-family-members> accessed 29 April 2018

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Lexis Library, ‘Outside the Immigration Rules and human rights applications—overview’ (Lexis Library, 2018)<https://www.lexisnexis.com/uk/lexispsl/immigration/document/393826/55KG-8PB1-F18H-6241-00000-00/Outside-the-Immigration-Rules-and-human-rights-applications—overview> accessed 29 April 2018.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

Should I hire an immigration lawyer?

Very frequently a potential client will ask, “Should I hire an immigration lawyer for a spousal visa?  At times, this is a difficult question to answer because people’s individual circumstances vary. Here’s chart to help you decide if you should hire an immigration professional or if you should attempt the visa on your own.

Should I hire an immigration lawyer or do the application myself?
Should I hire an immigration lawyer or do the application myself?