How does the Home Office deal with a mixed Indian-Pakistani couple where neither can get a visa for the other’s country? Should they be allowed remain in the UK together?
For a Pakistani man to marry an Indian woman or for an Indian man to marry a Pakistani woman, life can become very complicated.
Due to the seemingly never-ending state of hostility between Pakistan and India, intermarriages between their nationals are often viewed with suspicion and animosity.
It is often incredibly difficult for a Pakistani national to secure a visa to India and it is as much of a challenge for an Indian national to visit Pakistan.
So what then of an Indo-Pak couple living in the UK that applies for leave to remain here?
Can the Home Office lawfully remove the couple to their individual countries in the expectation that family life could continue in either Pakistan or India?
How are any children of the couple who are born in the UK to be treated?
Are they Indian or Pakistani?
Do they return with mum or with dad?
I have been dealing with this scenario in a number of cases over the past few years, two of which were resolved this month.
Case 1: ‘Bilkis’
The first involved ‘Bilkis’, an Indian lady married to Pakistani man with whom she had three children, all born in the UK, the eldest of whom was just under seven years old at the time of the application.
The couple spent a whopping £4055 on application fees plus an additional £2500 to pay the NHS surcharge, only to have their applications refused by the Home Office in April 2016.
The Home Office justified the decision on the basis that the Pakistani husband and his children could join their Indian wife/mother in India and settle there with her.
The Home Office did accept that there may be long delays and difficulties in securing these visas but that this did not constitute exceptional circumstances to justify granting leave to remain outside of the Immigration Rules.
The family of five appealed against the decision.
In addition to legal fees, the couple had to spend £700 in appeal fees and wait almost 18 months before their case came before the Tribunal in November 2017.
In the meantime, the Upper Tribunal made a decision in a separate case with an almost identical factual matrix.
In CS and Others (Proof of Foreign Law) India  UKUT 00199 (IAC), the Upper Tribunal determined that leave to remain should be granted due to the following circumstances:
- The couple were in a genuine marital relationship.
- They had genuine and subsisting parental relationships with their children.
- The children of the family had lived their entire lives in the United Kingdom.
- It would not be reasonable to expect any of the children to leave the United Kingdom given the fragmentation of the family unit which this would entail and the highly uncertain prospects of family reunification.
- There were obvious insurmountable obstacles to family reunification.
In that case, the Upper Tribunal lamented the fact that no expert evidence had been provided about the Indo-Pak visa problems but nevertheless determined the issue on the basis of whatever evidence was before it.
The Upper Tribunal found that the Home Office had failed to provide any evidence that the family could ever be reunited on Indian soil as claimed.
Returning to Bilkis and her family, when they finally got to the Tribunal, the Home Office withdrew the decisions stating they wanted to reconsider the case in light of CS (India).
Bear in mind that CS (India) was determined in April 2017, a full seven months before the hearing!
The Home Office reconsidered the decisions and granted the whole family leave to remain.
Case 2: ‘Vaishnavi’
The second case involved ‘Vaishnavi’, an Indian lady who had claimed asylum following her conversion from Hinduism to Islam and her marriage to a Pakistani Muslim in the UK.
Unlike in Bilkis’s case, there were no children of this marriage.
Therefore, there could be no consideration of the best interests of the children, a primary consideration in any immigration decision.
Following two successful judicial review challenges and an appeal before the Tribunal, Bilkis’ appeal was finally allowed on the grounds that there was a real risk that she would be persecuted by her family on return because of her conversion to Islam.
I will write more on the asylum aspects of her case in a separate post but want to focus right now on the issue of whether her husband could ever join her in India.
We submitted expert evidence confirming that
- There is no specific spouse visa for India;
- The Pakistani husband would have to apply for a visitor visa which cannot be extended;
- It can take up to four months or longer for the visa to be issued;
- The visa would only be valid for three months and there would need to be a minimum of two months gap between the date of exit and date of re-entry on a new visa;
- The husband’s adverse immigration history in the UK may impact upon the success of his visa application;
- Even if he were to be successful, he would have to keep on travelling from India to Pakistan back and forth throughout his life with no prospects of settling there;
- As a visitor, he would not be entitled to work, open a bank account or live a normal life in India.
- In 2016, over 50% of applications by Pakistani nationals for visit visas to meet their families in India were rejected.
Despite accepting this expert evidence and the Home Office concession that the husband could only secure a temporary visa to India, the judge refused to make detailed findings on this point on the basis that he had already allowed the appeal on asylum grounds.
So what then is the law governing such scenarios?
There are no definitive rules on this issue but the guidance of the Upper Tribunal in CS (India) is a good starting point.
If the case can be bolstered by expert evidence, this will no doubt assist further, particularly where there are no children of the marriage which significantly increase the prospects of success as they would inevitably be separated from one parent.
It seems abundantly clear from the expert report we obtained and other evidence openly available that it would be almost impossible for a Pakistani national to obtain a visa for India for the purposes of settling there with his Indian spouse.
In neither CS (India) nor any of the cases I have dealt with has the Home Office sought to adduce expert evidence to the contrary.
It is very important however to submit as much supporting documents as possible proving your case and not simply relying on a bare assertion that you could not obtain a visa for India.
It is also helpful to point out since the coming to power of the BJP in India, there has been a spike in Islamophobia at both state and societal level, which will no doubt impact upon decisions to grant visas to Pakistani nationals.
Visadreams.com, Diary of an Immigration Lawyer, is a blog run by Fahad Ansari, the director and principal solicitor of Riverway Law, a niche UK immigration and nationality law practice based in London. If you would like any advice or assistance in relation to your immigration matter, please do not hesitate to email me at email@example.com or submit your details here.