'Frankly insulting': Couple denied right to settle in UK told to move to Canada – despite no links to country

Ben and Brian Page tell The Independent they are 'devastated' by judges decision and will appeal it

Brian and Ben Page, who have been married for four years and face being separated (Brian Page)

A British man and his American husband, who was denied the right to settle in the UK, have been told by a judge they should move to Canada before reapplying for the right to remain - despite having no links to the country.

Ben and Brian Page met in 2012 on a European holiday and married two years later.

The couple returned to the UK from the US in November 2014 to visit Ben’s mother, who was terminally ill, and have remained here ever since. Brian applied for leave to remain the following year.

Following the latest ruling, the pair said they were “devastated” by the decision and would appeal it.

Their case was initially rejected because Brian was in the UK on a tourist visa when the application was made.

A law preventing people applying for visas from within the UK came into force in 2012 and immigration experts said they were dealing with a large number of similar cases.

Ben and Brian's attempts to overturn the decision were refused by the Home Office and the courts on two subsequent occasions, despite the pair submitting evidence suggesting they had suffered financial and mental distress and would struggle to establish a new life outside the UK.

At their last hearing, a judge said Brian should consider returning to the US to apply for a British visa. However, Ben would not automatically be granted a tourist visa, and would instead have to apply for a work visa – an expensive process that takes up to two years.

As an alternative to living separately, the judge suggested both men move to a third country, such as Canada, while they submit a fresh application to the Home Office.

Brian, 41, told The Independent that the prospect of being forced to relocate or live in separate countries was “devastating”.

The judges suggestion that they move to Canada was "inappropriate, because neither one of us have ties to Canada,” he said.

He added: "We have never been there. And for a judge to suggest a third party country take us while we sort out our visa is bonkers. For us it would just be devastating at this point, because of all that we have been through. They want to send me home on a technicality.”

Ben, 36, said the prospect of living separately from his husband of four years had triggered health problems and he had been diagnosed with depression after the application was rejected.

But the judge’s refusal letter, seen by The Independent, said there was “no medical evidence … as to the probable effect of temporary separation on his mental health”.

Brian should have been “fully aware when developing a private life or ties to the UK, that he had no expectation that he would be remaining here indefinitely”, it said, adding the “public interest in maintaining immigration control” outweighed their desire to settle as a couple in the UK.

In their application, the couple said laws in Brian’s native North Carolina made it difficult for LGBT couples to adopt children. They added that they provided regular care for Ben’s UK-based father, who had recently been diagnosed with lung cancer.

However, the ruling said there were “no insurmountable obstacles … which would be faced by the appellant and his civil partner in continuing family life together outside the UK, which could not be overcome”.

It added Ben’s father was not reliant on the couple for care as he was “not currently undergoing any intensive medical treatment” and his courses of radiotherapy and chemotherapy had ended.

The couple, who live in Milton Keynes, are appealing the decision and an upper tribunal will hear their case. They have set up a fundraising page to help with the costs of the appeal.

Brian, who is unable to work in the UK while the application is processed, said a decision could take months.

They were also critical of the wording of the judge’s ruling, which referred to them throughout as civil partnered rather than married.

“We are legally married in the US and UK, so this was so disrespectful,” Ben said.

Their case has been raised by Conservative MP Mark Lancaster, who wrote last week to the immigration minister asking for information.

In his letter, Mr Lancaster noted the couple’s concerns “over discrimination, in particular the judge not acknowledging that they are legally married”.

Under the family migration rules introduced in July 2012, it is only possible to apply for a spousal visa from within the UK under very specific circumstances.

The applicant must either have entered the country on a fiancé visa – after which they have six months to get married – or they must already have leave to remain for at least six months when they entered the country, for example by holding a longer-term working visa.

Applicants can apply for an exemption to this rule under Article 8 of the European Convention on Human Rights – the right to family life – something which the Home Office and judge agreed they qualified for, the couple said.

However, if they fail this test, as the court ultimately ruled they had, they must prove they would face “insurmountable obstacles” to establishing a family life outside the UK. It was this that led the judge to suggest they move to Canada.

“This is a very tough threshold to meet,” said Mary Atkinson, of the Joint Council for the Welfare of Immigrants. “We are coming across a lot of situations like these in our advocacy work – couples who, due to family emergencies here enter the UK on a visit visa, despite the fact that under the 2012 rules this basically disqualifies them from then applying for a spouse visa.

“This is particularly an issue since a spouse visa application is so prohibitively expensive – [at more than] £1,500 – and takes months to process. They, like many others, have been left penniless by their fight against the Home Office. The government aims to make ... Home Office border control functions fully self-funding by 2020, so it’s no surprise that visa application fees have shot up over recent years.

She added: “The suggestion that the couple move to Canada is frankly insulting, since it suggests that the caseworker involved in the response had not even properly read through an application on which the couple have spent thousands of pounds, in the midst of family bereavement and serious illness.”

A Home Office spokesperson said staff do not routinely comment on individual cases, and that while legal proceedings are ongoing it would be inappropriate to comment further

They added: “All applications are considered on their individual merits and in line with the immigration rules.”