In February 2017, the Supreme Court ruled on the case of MM (Lebanon) & Others v the Secretary for the Home Department  UKSC 10.
This case, running for many years, challenged the Minimum Income Requirement, introduced in 2012 by then Home Secretary, and now British Prime Minister, Theresa May.
The Supreme Court upheld the Minimum Income Requirement, stating it was lawful “in principle”. However, the seven judges stated that:
a) The minimum income threshold guidance provides for very little discretion on the part of entry clearance officers to consider the best interests of any children involved, something they have a statutory obligation to do under section 55 of the Borders, Citizenship and Immigration Act 2009, and
b) Any alternative sources of funding such as overseas assets or capital, the future earning potential of the incoming spouse or partner and loans or gifts from family or friends to make up any shortfall in the minimum income threshold cannot be considered, a factor the judges suspected may not comply with the Human Rights Act 1998.
Since the decision, anyone making an application for a UK Spouse, Partner or Fiancé Visa has usually received a standard email from UK Visas and Immigration, saying their application will be put on hold until further notice. Any supporting documents were returned to the applicant.
It appears that the email has been sent to all applicants, regardless of whether they met the Minimum Income Threshold.
The best immigration lawyers in our team have fought hard for clients trapped in limbo because of the Home Office delaying their Spouse, Partner or Fiancé Visa decision. Many of our clients have faced severe financial and personal destress because their visa has not been processed.
Under normal circumstances, a decision on a UK Spouse, Partner or Fiancé Visa decision should be made within 12 weeks. This is shortened to six weeks if the applicant pays for priority service.
Many of our clients have been left waiting four to five months for a decision.
The Minimum Income Requirement
To sponsor a spouse, partner or fiancé to come and live in the UK, a settled person must have a minimum income of £18,600 per year and have had this level of income for six months or more. A further £3,800 is required for one dependent child and £2,400 for each additional child.
It is estimated that 40% of British people could not meet the Minimum Income Requirement.
The draconian rule has been strictly enforced, leaving thousands of loved ones separated from each other, including many children who are having to live apart from a parent.
The Statement of Change on the Minimum Income Requirement
On the 20th July 2017, a Statement of Change was issued with the purpose of amending the immigration rules to give effect to the judgment in MM (Lebanon) & Others v the Secretary for the Home Department.
The changes made to Appendix FM-SE are as follows:
- In certain circumstances, the person deciding on the application (the decision-maker) may consider other sources of income, funds or financial support. The specified circumstances are that, firstly, the Minimum Income Requirement is not otherwise met and, secondly, it is evident from the information provided by the applicant that there are exceptional 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 child under the age of 18 years who would be affected by the decision.
- The funds the decision-maker may consider can include a credible guarantee of sustainable financial support from a third party; credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or any other credible and reliable source of income or funds available to the couple. There is prescribed guidance for the factors the decision-maker may consider when determining the genuineness, credibility and reliability of the other source of income, financial support or funds.
- If the applicant cannot meet the financial requirements, the decision-maker must go on to consider whether there are exceptional circumstances which would render refusal of the application a breach of Article 8 of the European Convention on Human Rights (ECHR) because it would result in unjustifiably harsh consequences for the applicant or their family. The test of proportionality will be used when deciding on whether entry-clearance should be granted on Article 8 grounds.
- The decision-maker must consider the best interests of any child who may be affected by the verdict made on whether entry-clearance will be granted.
- An applicant granted entry clearance or Leave to Remain as a partner or parent will be 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.
Other minor changes were also included to clarify certain sections of Appendix FM, including:
- “ensuring that children are granted leave of the same duration and subject to the same conditions as their parent, who is or has been granted leave under these Rules;
- ensuring that the partner of a person here with refugee leave or humanitarian protection cannot qualify for Indefinite Leave to Remain before that person has done so; and
- clarifying the drafting of the English language requirement for further Leave to Remain as a partner or parent.”
What the Statement of Change means for Spouse, Partner and Fiancé Visa applicants
The Statement of Change is a welcome relief for both clients and immigration solicitors, many of whom have had to challenge UK Visas and Immigration delays by threatening judicial review, to get the best results for their clients.
Going forward, some Spouse, Partner and Fiancé Visa applicants may have a greater ability to meet the Minimum Income Requirement by providing evidence of credible third-party funding. Others may have strong grounds under Article 8 to argue that refusing a visa would result in the British government breaching its obligations under the ECHR.
But perhaps the greatest significance of the Statement of Change is it recognises that in civilised nations, children should not be ripped away from a parent and do best when living in a stable family unit.
It is a pity it has taken five years and a Supreme Court challenge for the British government to acknowledge this.
OTS Solicitors is one of the most respected immigration law firms in London. Our Immigration team would be happy to talk to you about applying for a Spouse, Partner or Fiancé Visa and answering any questions you may have on the Statement of Change.
By making an appointment with one of our immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.
If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.
For the best expert legal advice and outcome on your UK immigration application, contact OTS immigration solicitors on 0203 959 9123 or contact us online.
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Posted on: Monday, 24 July, 2017