Subsisting marriage versus spousal mobility

There's been some scattered concern about whether spouses are in a 'subsisting' marriage when one of them travels, or the family unit is otherwise separated. 

Most of this has been laid down in prior decisions, *BUT* in a tribunal hearing earlier this month, they actually locked horns with the Home Office over the semantics of 'subsisting'; and the results were interesting enough to be deemed 'reportable'.  'Reportable' means the tribunal makes the findings available to the general public, rather than to a smaller body of interested professionals and stake-holders.

Here's what they had to say:  "...This case is reported for what we say about the meaning of ‘subsisting’ in relation to marriage within Part 8 of the Immigration Rules HC395, Family Members. A marriage is subsisting for the purposes of these Rules if it has been lawfully entered into and has not thereafter been lawfully dissolved or annulled..."

If you've been concerned about this, you should have a read!  It's at...
http://www.ait.gov.uk/judgmentsfiles/j1835/00174_ukait_2005_bk_za_uk_turkey.doc

That should settle it - for spousal apps anyway.  Now whether the same case could be used for contesting an adverse ILR decision (like the sticky subject at the top of this board) remains for some dauntless advisor to test.

Another decision, handed down just 2 weeks ago, and also gets discussed here from time-to-time, deals with children

http://www.ait.gov.uk/judgmentsfiles/j1837/00177_ukait_2005_om_jamaica.doc

That would seem to indicate that a married couple who are not living apart, but have not lawfully seperated or divorced, can be deemed to have a subsisting relationship.  If so, this is a major development.


Victoria