British national Toni Stew told the BBC in February that she feels like a single mother, even though she is happily married. She has been married to her Egyptian husband since 2016, but her young son had only seen him a few times. She blamed this on the Spouse Visa finance requirements, which she cannot meet. Because she is caring for her child, she can only work part-time as a sales assistant; her earnings, therefore, fall far short of the £18,600 per annum required to bring a foreign spouse into the UK.
Many cases like that of Mrs. Stew have been highlighted, especially following the Supreme Court on R (on the application of MM (Lebanon)) v Secretary of State for the Home Department in February. Many couples, migrant pressure groups, and the best immigration solicitors, especially in London where many foreign nationals live, hoped that the seven learned judges who heard the case would overturn the Court of Appeal’s previous decision to uphold the minimum income threshold.
In a major victory for immigration law advocates and spouse visa applicants, the British Government has finally 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
The minimum income threshold for the UK Spouse Visa
Since 2012, a UK settled person (i.e. who has British Citizenship or Indefinite Leave to Remain), who wishes to sponsor a non-EEA spouse, civil partner, unmarried partner or fiancé to join them in the UK, must have a minimum salary 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.
Prior to 2012, couples only had to prove they could support themselves without using public funds.
A couple’s savings can be considered, but any shortfall from the financial requirement threshold must be multiplied by 2.5 and added to the sum of £16,000.00.
In practice, if the sponsoring spouse has an annual gross income of £14,000, the shortfall of £4,600 must be multiplied by 2.5 (£11,500) then added to the ‘base’ amount of £16,000. Therefore, the couple would need to provide evidence of savings of a total of £27,600.
Solicitors who specialise in UK spouse visas can assist couples with working out the complicated saving shortfall formula.
How people are affected by the financial requirement of the UK Spouse Visa
The Home Office Spouse Visa financial requirements were brought in by Prime Minister, Theresa May, who at the time was Home Secretary. Mrs. May has long been determined to drastically curb immigration figures and targeting immigrant families wishing to come to the UK to join a partner or a parent, was one way to achieve this.
The UK Spouse Visa financial requirements have always been viewed as harsh. Research estimates that only 40% of settled UK people could meet the financial requirement set out by the Home Office for spouse visas.
In 2015, the Children’s Commissioner for England published a scathing report accusing the government of forcing up to 15,000 British children to grow up separated from a parent due to the harsh Home Office Spouse Visa financial requirements. The reported stated that Skype was the primary method of contact the children had with their parent.
Anne Longfield, Children’s Commissioner for England said:
“There is a wealth of evidence which indicates that children are far more likely to thrive when they are raised by parents in a warm, stable and loving family environment, and that is why I am a strong supporter of family-friendly policies.
“I am therefore very concerned that the immigration rules introduced in July 2012 actively drive families apart, and leave British children able to communicate with one parent only via Skype.
“Many of the children interviewed for this research suffer from stress and anxiety, affecting their well-being and development. It is also likely to have an impact on their educational attainment and outcomes because they have been separated from a parent, due to these inflexible rules which take little account of regional income levels or family support available.
“We are not talking about having unrestricted access, but we need to put the heart back into this policy and consider the profound impact the rules have on this group of British children and their families.”
The Children’s Commissioner made the following recommendations in the report to improve the situation for families:
- increase flexibility when calculating a family's income to reflect family support available and local wage levels
- inclusion of a requirement to consider the best interests of every child affected
- amendment to forms and guidance to ensure decision-makers properly consider children’s best interests in the decision-making process
- changes to the cost of applications and the application process
- grant of visit visas to parents of children living in the UK
- improvements to data collection and publication of applications.
The best immigration solicitors and lobby groups agreed, leading to the significant case of R (on the application of MM (Lebanon)) v Secretary of State for the Home Department being heard in London’s Supreme Court.
The MM case was a long-awaited update on the law surrounding the financial requirement for UK spouse visas. Although the Supreme Court judges held that the financial requirement was not in breach of human rights and was acceptable “in principle,” it did go some way to support the Children’s Commissioner’s recommendations.
The judges held that the Home Office Spouse Visa financial requirements were inconsistent with the British government’s obligations under section 55 of the Borders, Citizenship and immigration Act 2009 and the UN Convention on the Rights of the Child. It directed that the immigration rules and guidance needed to be updated so immigration staff could give enough weight to the best interest of any children involved in cases where the UK Spouse Visa financial requirement should be applied. The court also held that failing to allow entry clearance officers to take any third-party funding into account when meeting the minimum income threshold also needed to be reviewed by the Home Office.
What you can do if you are applying for a UK Spouse Visa
The best way to increase your chances of having a visa application approved is to instruct an experienced immigration lawyer who understands spouse visas. A solicitor who is experienced in making applications for UK spouse visas may charge a fixed fee for the service in some cases, depending on the complexity of the matter.
By instructing an immigration lawyer who will make strong legal representations following the Supreme courts decision in MM (Lebanon) and the Home Offices change to the immigration rules, you have a high chance of successfully reuniting with your family.
OTS Solicitors is one of the most respected immigration law firms in London. Our immigration team dealing with UK family visas comprises of Smit Kumar, Hans Sok Appadu, and Maryem Ahmed, all of whom would be happy to talk to you about applying for a UK Spouse Visa and any questions you have on the minimum financial requirement.
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 0207 936 9960.
For the best expert legal advice and outcome on your UK immigration application, contact OTS immigration solicitors on 020 7936 9960 or contact us online.
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Posted on: Thursday, 20 April, 2017