Proof of ‘Intention to Leave’ on Visa Applications
What requirements need to be met in order to succeed in a visitor visa application?
Firstly, the purpose of visit requirements restricts certain activities for the visitor. Common purposes are holiday, family visits or transacting business. Secondly, the duration of the visit must be specified and it must not exceed six months. Thirdly, maintenance and accommodation requirements must be met by both the visitor and their sponsor, in family visitor visas. Lastly, a key requirement which shall be explained here is proof of intention to leave at the end of the allocated period of time.
How can an applicant prove their intention to leave the UK at the end of a visit?
The applicant must only prove their intention to leave to the low, civil standard of the balance of probabilities. All this means is that the immigration officer (or Immigration Judge if the visit visa reaches the appeal stage) must decide that it is more likely than not that the applicant will return. In order to meet this standard of proof, however, the applicant must submit circumstantial evidence to aid the immigration officer in making this judgement. The sponsor, too, may submit evidence to help provide a fuller picture of the intentions of the applicant.
The incentives that this applicant has to return to their home country will be considered. For example, if there are strong family, work or property commitments to return to then this will make a stronger application as the immigration officer is more likely to regard the proof of intention to leave requirement as being met.
However, the tribunal has ruled that an apparent lack of incentive to return should not itself be treated as a reason to refuse a visit visa application. Otherwise, travellers with a relative lack of engaged or committed lives would have less chance to travel perhaps precisely at the stage of their life when there are able to do so.
A lack of incentive can be taken into account if further requirements are not met and in developing a fuller picture of the applicant’s overall intentions. It is common for this requirement to be cited in Reasons for Refusal letters (Notice of Immigration Decisions) precisely because it is not as straightforward for the applicant to prove.
Additionally, an applicant must show that they can meet the cost of the return or an onward journey from the UK. The purchase of the return or onward ticket is the simplest way to prove this to an immigration officer or Judge.
Is there stereotyping and discrimination when considering the difference in economic circumstances between the home country of an applicant and the UK?
There are many cases where this reasoning is demonstrated by immigration officers and Entry Clearance Officers who judge a difference in national economic circumstances as an incentive to overstay a visit visa. In the case of R v ECO 1999 for example, the representation of the appellant argued that if the Entry Clearance Officer’s reasoning was taken too far then no young, single woman from developing or poor countries would be able to obtain visitor entry clearance.
The applicant in this judicial review case was a recent university graduate who did not have a job to return to on earlier applications but had gained employment at the time of her later applications. The Entry Clearance Officer described her income from this job as ‘modest’ and assumed that the woman would overstay with the hope of earning more in the UK. The High Court took a more sympathetic view of this applicant, recognising that in a country full of conflict and offering very limited opportunities for women to gain any independence this was a considerable achievement and consequently a strong incentive to return.
The tribunal decision of Ogunkola v ECO Lagos (2002) included the view at paragraph 7 that ‘if lack of economic incentive to return to the country of origin were sufficient to found a refusal of a visit application, then no person living overseas whose standard of living was lower than that prevailing in the UK could ever come on holiday here, or visit relatives settled here. That is not the law.’
What is the basis of government scepticism about the intention of visitors to return home?
A 2002 White Paper entitled ‘Safe Borders, Safe Haven’ came up with various proposals to prevent switching from visitor to spouse status and outlined the scepticism caused by visitors trying to circumvent the rules by overstaying visit visas. The 2002 White Paper included these statistics at paragraph 7.11:
‘In 1999, 76 per cent of those granted leave to remain on the basis of marriage had been admitted to the UK for another purpose and 50 per cent of those who switched into the marriage category did so within six months of entry.
The Paper concluded:
‘As it seems unlikely that such a large percentage of this number would develop permanent relationships within such a short period of time, the indication is that many of these persons had intended to marry all along but had not obtained leave to enter on this basis and had therefore lied about their intentions to the Entry Clearance Officer. Alternatively, they may have entered a bogus marriage to obtain leave to remain after arrival.’
These conclusions do not consider certain other variations such as the effect that six months’ leave has on a relationship; the time limit may speed up the romance and commitment. Also, the applicant may feel more capable at applying for a spouse settlement in country rather than from abroad.