UK Visas and Immigration did not did not consider two laws when making an immigration decision

What happened

Mr S arrived in the UK in 2009 as a student but overstayed his visa. His later applications for leave to remain were unsuccessful but he made a third application in early 2012. In the covering letter, his solicitors explained that Mr S had proposed to his partner (now wife), who had settled in the UK, in early spring 2011.

In late 2012, the solicitors told Mr S's MP (but not UKVI) that Mr S and his wife were expecting a child in summer 2013.

In spring 2013, UKVI refused Mr S's application because he had only been living with his partner for four months, which was not enough for immigration purposes.

Mr S's solicitors also said that UKVI failed to consider Mr S's case under two laws, first against the Immigration Rules (pieces of legislation that make up the UK's immigration law), and then under Article 8 of the European Convention on Human Rights, which says there has to be respect for a person's private and family life.

What we found

We partly upheld this complaint. UKVI's explanations about Mr S's case were reasonable in that he had not been living with his partner for more than two years at the time of his application. This did not accord with the Immigration Rules. We also accepted UKVI's explanation that it could not consider Mr S as a fiancé under the Immigration Rules because he had not originally entered the UK as a partner/fiancé.

Having considered information from the solicitors and seen Mr S's Home Office file, we found no evidence that UKVI had been told of Mr S's impending fatherhood before it made its decision in spring 2013. Therefore, we did not consider it was reasonable to expect UKVI to take this into account in its decision.

UKVI told us that it was its practice, as it was bound by law, to consider whether there was reason to grant leave to remain under Article 8 of the European Convention on Human Rights, separately from its consideration under the Immigration Rules. However, there was no evidence to show that UKVI considered Mr S's case in this way.

The reason that UKVI reconsidered Mr S's case (in part) was a technicality: UKVI could not demonstrate that it had considered Article 8 separately from the Immigration Rules, which it is legally obliged to do.

Putting it right

UKVI apologised for its incomplete handling of Mr S's case and reconsidered it, taking into account Article 8 of the European Convention on Human Rights. This led to UKVI granting Mr S leave to remain until December 2017. We also said it would be open to Mr S to ask UKVI for compensation following its decision on the outstanding part of the application.