Subsisting marriage: Naz v SSHD

The Upper Tribunal has once again addressed the concept of subsisting marriage - a very confusing notion for immigration lawyers and judges.  We hope that the new guidance will simplify the thought process for immigration judges.

"Subsisting marriage" is one of the requirements of the immigration rules for a UK spouse visa. This requirement is contained in paragraph 281(iii)together with the requirement to demonstrate the intention to live together permanently as husband and wife.  

Judges had often found the notion of "subsisting marriage" confusing, especially parties had spent considerable time away from each other in different countries, either because of financial consideration or due to work commitments, family circumstances, etc.  It appears that Mr Justice Blake sees subsisting marriage as synonymous with the intention to live together as husband and wife, thus simplifying for the applicant the task of accounting for the period of separation.

We hope this decision will bring clarity to the confusing notion and subsisting marriage would no longer be assessed retrospectively, as it often was by the harsher judiciary.

Naz v SSHD, [2012] UKUT 00040