Update – New Home Office Guidance on Marriage/Partner Applications and the minimum income requirements
If you have been thinking about making an application for a spouse visa or you have an application already pending, you will be pleased to know that the Home Office has now published new guidance to give a clearer indication of how applications will be decided from 10 August 2017 if an applicant cannot meet the minimum income rule.
Why is there new guidance?
The new guidance reflects the judgment by the Supreme Court in MM(Lebanon) & Others v SSHD  in February earlier this year and the Home Office’s Statement of Changes to the Immigration Rules of July which implemented the main findings of the Supreme Court (you can read about the statement of changes here [link to previous article]).
Appendix FM of the Immigration Rules deals with applications on the basis of family life. The minimum income requirement was introduced on 9 July 2012 and requires that a couple must show a minimum gross annual income of £18,600 (or higher if there are non-British or non-settled dependant children). Due to the fact that many people could not show that they earned enough, meaning that they were kept separate from partners and children, this rule was challenged as unlawful as it is a breach of the human right to family and private life. The challenge went to the Supreme Court, the highest court in the UK, where it was decided that whilst the minimum income requirement is in fact lawful, the Home Office needs to amend the Immigration Rules in a way that would mean that the best interests of any children involved are properly accounted for and that other possible sources of income and financial support are also taken into account.
Appendix FM-SE deals with how to show you can meet the minimum income requirement. It lists very specific evidence that needs to be submitted with an application. Often if a document is missing an application can fail solely on this basis.
What does the new guidance say?
The new Home Office guidance documents are lengthy and a detailed analysis cannot be given in this short article. However, some of the main points are summarised and simplified below.
How can I show I meet the minimum income requirement under the amended Rules and new guidance?
When considering an application, the Home Office will first look at whether the applicant meets the minimum income requirement through the following sources:
- Salaried or non-salaried income from employment of the applicant or partner;
- Self-employment income of the partner;
- non-employment income such as income from rent or income from dividends by the applicant or partner;
- savings of more than £16,000 held in cash by the applicant or partner.
If the partner is in receipt of specific benefits the applicant will have to meet the adequate maintenance requirement instead of the minimum income requirement. This looks at income and housing expenses.
Previously, the Home Office would stop here and if the minimum income requirement or the adequate maintenance requirement were met (along with the other requirements under the rules) the applicant would be granted leave under the 5 year route to settlement. If the minimum income requirement was not met it would previously have meant an automatic refusal. The 5 year route to settlement means the applicant would be granted entry clearance to come to the UK with leave to remain for 2 and a half years. Before the expiry of that leave the applicant would have to make another application to show that they continue to meet the requirements of the Immigration Rules. They would then be granted another period of leave of 2 and a half years. Before expiry of the second period of leave to remain the applicant could apply for indefinite leave to remain (settlement) as long as they meet the requirements.
From 10 August 2017, if the minimum income requirement is not met through the above sources, the Home Office will now go on to consider whether there are any exceptional circumstances. Exceptional circumstances in the amended Rules are circumstances “…which could render refusal of the application a breach of Article 8 because it could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child.”.
If exceptional circumstances exist the Home Office will then take into account alternative sources of income including:
- Support from a third party such as a parent or other relative;
- Prospective earnings from employment or self-employment of the applicant or partner;
- any other “credible and reliable” sources of income.
If the applicant has not provided evidence of this with their application, they should be contacted by the Home Office and asked to provide the evidence within 21 days. If the applicant can show that they meet the minimum income requirement through these alternative sources, then the applicant will be granted leave under the 10 year route to settlement. The 10 year route to settlement means that the applicant would be granted entry clearance to come to the UK with leave to remain for 2 and a half years. Before the expiry of their leave the applicant would have to make another application to show that they continue to meet the requirements of the Immigration Rules. Once the applicant has completed 10 years of leave to remain they can apply for indefinite leave to remain (settlement) as long as they meet the requirements.
What if I cannot meet the minimum income requirement at all?
If an applicant cannot meet the minimum income requirement through any sources or they cannot meet other requirements, the Home Office will consider whether there are any exceptional circumstances which “…would result in unjustifiably harsh consequences for the applicant, their partner or a relevant child.” If the Home Office conclude that there are exceptional circumstances that would result in unjustifiably harsh consequences, the applicant will be granted leave under the 10 year route to settlement (see above).
Assessing whether there are exceptional circumstances or there could or would be “unjustifiably harsh consequences” is not straightforward and every case is different. The guidance has detailed criteria of how this should be assessed and what the Home Office will look at.
If you are worried that you cannot meet the minimum income rule then you can get in touch with us. Once we understand your circumstances, we can give you advice on whether your circumstances could be considered exceptional and how best to prepare your application.
What can I do to get help with my application?
The amended Rules and the accompanying guidance although still quite narrow and stringent are a step in the right direction allowing those who previously had no hope of being granted entry clearance the chance to make representations to show how refusal would affect their family life with their partner and any children involved. This can be quite daunting and if you are thinking of applying to join your spouse or partner in the UK, it may be helpful to get legal advice to help you navigate the complex Rules and guidance.
If you want our advice on making an application or if you have an application pending with the Home Office and you want advice on alternative sources of income then please contact us and one of our expert lawyers will be happy to help.
Solicitor and Senior Caseworker