The UK government has published a Statement of Changes to the Immigration Rules intended to give effect to the Minimum Income threshold findings made by the Supreme Court judgment in MM (Lebanon) & Others v the Secretary for the Home Department [2017] UKSC 10.
In February this year, the Supreme Court upheld in principle the Minimum Income threshold which requires a UK citizen or a settled person to demonstrate a minimum income of £18,600 per annum (for a partner applicant only and higher where children are involved) before they can apply for their families from non-EEA countries to join them in the UK.
However, the court also held that the rules and policies used by the Home Office to assess such cases would need to be amended to take proper account of the impact on children and other possible sources of income and support. The court ruled that the Home Office will need to consider any unjustifiably harsh consequences for the family should they not meet the applicable minimum income threshold.
The judges therefore confirmed that where an applicant cannot meet the minimum threshold, alternative and reliable third party sources of funding should be taken into account.
The Statement of Changes inserted a new paragraph (21A of Appendix FM-SE) stating that the Home Office caseworker considering the application is obliged to consider whether, in ‘specified circumstances’, the £18,600 minimum income requirement (for a partner applicant only) would be met if other sources of income or financial support are taken into account.
The “specified circumstances” include:
- where the minimum income threshold is otherwise not met;
- where refusal of the application would breach the applicant’s human rights or those of their partner and/or minor children; and
- where the decision will result in unjustifiably harsh consequences for the family.
Where the above applies, consideration may be given to:
- credible guarantee of sustainable financial support from a third party (e.g. from financially stable family members)
- credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner (e.g. if the spouse has a job offer that starts within three months of arriving in the UK)
- any other credible and reliable source of income or funds available to the couple.
Applicants relying on alternative sources of income, financial support or funds will need to provide verifiable documentary evidence to support their application that satisfies the Home Office caseworker of its genuineness, credibility and reliability.
Those successfully applying under the specified circumstances provision will be granted entry clearance on a 10-year route to Indefinite Leave to Remain instead of the standard 5-year route, with the potential to apply under the 5-year route should they subsequently meet the relevant requirements.
Since the MM (Lebanon) judgment was handed down on 22 February 2017, there has been a temporary hold on decision making in more than 5000 applications to which the MM (Lebanon) judgment may apply, pending this review of the Immigration Rules. It follows that that those paused cases should now be considered.
The changes shall take effect from 10 August 2017 and will apply to all decisions made on or after that date regardless of when the application was made.
For further advice and guidance, please email gillian@raffinattorneys.co.za