By Atia Sahdat, OTS Solicitors
Following the initial changes made to the UK Immigration Rules on 9th July 2012, the entire UK immigration system became increasingly stringent in granting both entry clearance to non-EEA nationals as well as granting leave to remain for those individuals already in the UK.
Although there were many vast changes, one of the main changes implemented was in relation to the requirements for a UK Spouse Visa. The Home Office decided to introduce a minimum income requirement (MIR), commonly referred to as the Spouse Visa financial requirement. The current requirement states that British citizens or settled persons intending to sponsor their non-EEA spouse/partner for a Spouse Visa, for both in-country and entry clearance applications, must satisfy the minimum gross annual income threshold of £18,600. The financial requirement further stipulates that for those sponsoring children as well as their spouse, the British citizen/settled person would need to earn an additional £3,800 for the first dependent child and £2,400 for each further child. The financial requirement would not only need to be met at the initial application stage but also for all extensions including the final application for Indefinite Leave to Remain as a Spouse Visa falls under the five-year route to settlement.
The changes were certainly not welcomed and the case of MM (Lebanon) & Others v the Secretary for the Home Department  UKSC 10 is a primary example of the opposition that the changes created.
The case of MM (Lebanon) & Others v the Secretary for the Home Department  UKSC 10 concerned a Lebanese national in the UK with refugee status who was hoping to sponsor his wife from Lebanon for a Spouse Visa. However, MM did not meet the minimum financial requirement of £18,600 as he was only earning £15,600 gross per annum. The issue that arose relates not only to the fact that he could not meet the financial requirement but also related to MM’s proposal that he could meet the financial requirement through third party financial support from his family members. MM argued that he could not relocate to Lebanon to continue his married life as he has a well-founded fear of persecution as a result of which he was able to successfully obtain refugee status. Consequently, the conclusive argument was that MM could not live in the UK with his wife which MM stated was an unjustified interference with his right to respect for private and family life under Article 8 of the European Convention on human rights (ECHR).
What does this mean for current Spouse Visa applications?
The Supreme Court judgment was provided on 22 February 2017 and as a result, the Secretary of State placed a temporary hold on assessing applications which fall for refusal on the basis of not meeting the financial requirement and/or involve a minor child; the temporary hold is said to have effected approximately 5,000 applications, a combination of both in-country and entry clearance applications.
The judgment concluded that the minimum financial requirement of £18,600 for a Spouse Visa was lawful and in line with Article 8 of the ECHR thus stipulating that that the minimum financial requirement should continue to be met by those applying for a UK Spouse Visa.
What are the new changes to the Spouse Visa requirements under the UK Immigration Rules?
Although the case of MM (Lebanon) & Others v the Secretary for the Home Department  UKSC 10 appears to have been unsuccessful in removing the financial requirement, the case did have a positive outcome to some extent.
One of the positive outcomes is the amendment made to paragraph 21A of Appendix FM-SE which now makes a provision for other reliable sources of income or finance to be taken into account in order to satisfy the financial requirement if refusal of the application would be in breach of Article 8 of the ECHR.
Other reliable sources of income or earnings can now include a guarantee of maintainable financial support from a third party as well as prospective earnings from Employment or self-Employment. The Home Office will also need to consider certain factors when assessing applications under the new provisions; the factors include considering the credibility, genuineness and reliability of the other source of income in order to best determine if the applicant meets the financial requirement of £18,600.
The judgment also requires the Home Office to consider whether there are any apparent exceptional circumstances. The Home Office will need to adopt this approach in cases where the applicant does not meet the financial requirement and where refusal of a Spouse Visa based on the financial requirement, would be in breach of Article 8 of the ECHR resulting in unjustifiably harsh consequences for the applicant and sponsor. This means that the test of proportionality under Article 8 can now be applied to the Immigration Rules which was previously only applied to applications relying on provisions outside of the Immigration Rules.
Although the term ‘exceptional circumstances’ has not been defined, the less stringent approach has certainly paved the way for positive future changes to the UK Immigration Rules allowing non-EEA nationals to fulfil the requirements for a Spouse Visa with ease. It is worth noting that those who are granted entry clearance outside of the Immigration Rules under Article 8 of the ECHR will be on the 10-year route to settlement with the opportunity to vary their leave in-country to the 5-year route to settlement provided they meet the relevant requirements.
The Home Office are also now required to have the best interest of dependent children as their primary consideration when assessing Spouse Visa applications therefore, directly enforcing the duty already imposed on the Home Office by section 55 of the Borders, Citizenship and immigration Act 2009 on Appendix FM of the Immigration Rules. The Home Office were previously not required to consider the best interests of a child in Spouse Visa applications, the amendment is therefore hugely welcomed.
When will the new changes to the Spouse Visa requirements come into force?
The new provisions will be implemented from 10th August 2017 and as such the Home Office will be required to consider the new provisions when assessing Spouse Visa applications.
The UK’s preparations for leaving the European Union are underway and with the official leaving date to be confirmed soon, EEA nationals outside of the UK should remain up to date with the new provisions as they could potentially be required to meet the same requirements as non-EEA nationals currently, should they wish to join a spouse/partner in the UK.
Home Office faces new legal challenge for failing to implement Judgement properly
Since the publication of the new provisions, the Joint Council for the Welfare of Immigrants (JCWI) has plans to begin new legal proceedings against the Government on the basis that the Home Office have failed to properly implement the Supreme Court judgment. The JCWI has further accused the Home Office of failing to publish policy guidance that stipulates how the new provisions will be implemented in practice.
The JCWI and BritCits have both stated that the case will return to the Supreme Court if they find that the Home Office are assessing applications incorrectly and failing to correctly implement the new provisions to the Spouse Visa requirements.
How can OTS Solicitors assist
With the Home Office due to start assessing applications under the new provisions, it is vital that those applications currently on hold submit further representations to strengthen their case. Our team of immigration experts are on standby to assist you and your family through the new and complex legal provisions. Please call our team of specialist immigration solicitors on 0207 936 9960 to ensure that your application is successful.
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Posted on: Thursday, 03 August, 2017