In a major victory for Immigration law advocates and spouse visa applicants, the British Government has amended the immigration rules surrounding the minimum income threshold to make it easier for some families to meet the requirements.
The Statement of Change, released on 20th January 2017, makes the following changes to the Appendix FM-SE of the immigration rules.
- An Immigration official deciding on an application (known as the decision-maker) for a UK spouse visa may now consider third-party funding which would allow the sponsoring partner to meet the Minimum Income Requirement.
- If the minimum income requirement is not met by the sponsoring partner, the decision-maker may consider whether there are exceptional circumstances which would render refusal of the application a breach of Article 8 because it would result in unjustifiably harsh consequences for the applicant and/or their family.
- The decision-maker must have regards to the best interests of any child affected by their decision on whether to grant entry-clearance to the applicant.
- If entry-clearance is granted on Article 8 grounds, applicants may be placed on a 10-year route to settlement (Indefinite Leave to Remain), with scope to apply later to enter the five-year route where they subsequently meet the relevant requirements
Background to the Statement of Change
In February 2017, the Supreme Court in the case of MM (Lebanon) & Others upheld the lawfulness of the minimum income requirement. However, the judges found
a) that other reliable sources of earnings or finance, beyond those currently permitted under Appendix FM-SE, should be considered in circumstances where refusal of the application could otherwise breach Article 8; and
b) that Appendix FM did not give direct effect to the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard, as a primary consideration, to a child’s best interests in an Immigration decision affecting them.
The Statement of Change puts into effect the Supreme Court’s findings and recommendations.
The effect of this change on family visa applicants
Since the decision in MM (Lebanon) & Others, many spouse, partner and fiancé visa applications have been on hold. Now the immigration rules have been amended to reflect the Supreme Court’s decision, these applications can move forward, with some now having the chance to succeed where previously, entry-clearance may have been denied.
There will be a more detailed analysis of this development available later today.
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Posted on: Friday, 21 July, 2017