Many factors come into play in deciding when to make an application for further leave to remain as a spouse, but the most important factor now is how to meet the financial requirements.
Depending on how you intend to meet the financial requirements, you may need to bring forward your intended application date or move it back, as long as you do not become an over stayer. We have clients that have previously been able to meet the financial requirements but are no longer able to do so. The options will be either to wait until the financial requirements can be met, or to rely on paragraph Ex.1 or GEN 3.1.
GEN 3.1 applies to both applications made in the UK and those from abroad and require a decision maker to consider where the financial requirement cannot be met from the sources specified in the Immigration Rules. To succeed under the GEN 3.1 provision, there must be evidence of exceptional circumstances, which would mean there would be unjustifiably harsh consequences for the family. In these circumstances the Home Office must consider other sources of income outside the specified ways in which the financial requirements are usually met.
Paragraph Ex.1 only applies to applications made by people in the UK already, and it requires the decision maker to consider if it would be unreasonable to require a relevant child to leave the UK or if there are insurmountable obstacles to family life continuing outside the UK. If either one of these circumstances apply, leave can be granted in the spouse category. However, the grant might be under the 10 year route as opposed to the five year route.
An additional problem will be to get the documents for the spouse visa application, given that many businesses in the UK or abroad are closed or are only providing essential services. An additional problem is likely to be for those who need to take an English Language or Life in the UK Test prior to making the application. Where this applies, the options are to wait until the test centres have re-opened as long as the person does not overstay, or to make an application now with a view to adding the relevant test details later on.
For an applicant who is outside the UK and cannot get married, they will have to delay the application until after the wedding unless they have already lived together with their British or settled partner for two years and can make an application as an unmarried partner.
For those in the UK as a fiancé it may be necessary to extend your leave for a further period in order for the marriage to take place at a later date. The Immigration Rules make specific provisions for that, and it will involve making a further paid application from within the UK. They could also take advantage of the Home Office extension for those with leave expiring before 31st May 2020.
Another important development is that whilst normally a person who is visiting the UK cannot switch from visitor category to a spouse or partner category, under the Government Covid-19 policy it is now possible for those with leave expiring before 31st May 2020 to make their application directly into the spouse or partner category without having to leave the UK first.