Head of Immigration, Ivon Sampson, discusses the impending changes to Appendix FM minimum income rule following the recent MM (Lebanon) case.
The following changes shall take effect from 10 August 2017:
- To allow for consideration of other sources of income to meet the Minimum Income Rule
- Where other sources of income are relied upon the applicant, partner and any children, will be granted leave on a 10-year route to settlement
- To give appendix FM the cover of being compliant with 55 of Borders, Citizenship and Immigration Act 2009 (best interests of children)
- To allow for recourse to public funds in certain circumstances
- Clarifying the drafting of the English language requirement for further leave to remain as a partner or parent
- Ensuring that a partner of a person here with refugee leave or humanitarian protection cannot qualify for settlement before that person has done so
MM Lebanon Case:
- Upheld principle in Minimum Income Rule requiring an income of at least £18,600 to sponsor a foreign spouse and higher where children are involved. The rules require an additional £3800 for the first child and £2400 for any other additional child.
- But also held that the rules and policies used by HO to assess cases would need to be changed to take proper account of the impact on children and other possible sources of income and support.
- The SC held that the HO instructions to caseworkers require amendment to consider alternative sources of funding when considering a claim under article 8.
- The HO has said these Statement of Changes will allow the applications that have been placed on hold (over 5,000) to be decided and future applications consistently with finding of SC in MM Lebanon. An influx in immigration decisions is expected from 10 Aug 2017.
Changes to General Requirements of Appendix FM
- Amended to require decision maker to consider whether the Min Income Rule can be met from other sources of income, financial support or funds- set out in new paragraph 21A of Appendix FM-SE.
- The statement of changes insert new general provisions in Appendix FM (paragraphs GEN.3.1. to 3.3.) which require the decision maker, in the specified circumstances, to consider whether the minimum income requirement is met if the other sources of income, financial support or funds set out in the new paragraph 21A of Appendix FM SE are taken into account.
- The specified circumstances are that:
- The minimum income requirement is not otherwise met
- 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 it is evident would be affected by a decision to refuse the application.
This brings the test of proportionality under article 8 into the Rules. This test was previously applied by the Home Office in considering whether to grant leave outside of the rules on article 8 grounds. These changes arguably mean that the Immigration rules now provide a complete framework for the SSHD consideration of Article 8 grounds of applications under Appendix FM by a partner, child, parent or adult dependent relative.
Changes to the Specified Evidence
- Contained in the new paragraph 21A of Appendix FM SE are the other sources of income, financial support or funds which the decision maker will take into account if the HO consider the specific circumstances to be met
- Other sources of income, financial support or funds which the decision maker will now consider includes:
- 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
Paragraph 21A includes a ‘genuineness test’ with the onus on the application to demonstrate this for third party support or employment and self-employment
When assessing ‘genuineness’ of third party support, Home Office will consider whether:
- The third party is in a stable financial situation,
- That stability is sufficiently strong as to continue for the period of leave applied for, and
- There will be no changes to the applicant’s relationship with the third party that may impact on the future availability of the funds.
For employment and Self Employment there must be evidence of its existence and that is can commence within three months of the applicant’ arrival or grant of LTR.
Best Interests of the Child
To provide for the consideration of the best interests of the child the SSHD have inserted into EX1(a)(ii):
‘taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK.’
The SSHD considers that by making this explicit statement of best interests this give effect to her duty under s55 of the Borders Citizenship and Immigration Act 2009, this is arguably not sufficient on its own to bring the entirety of Appendix FM compliant with s55. This weak spot concerning whether in its entirety Appendix FM is s55 complaint, it is thought we will cleared up by future case law.
Leave granted- 10 Year Route to Settlement
Where the new provision in GEN.3.1 or GEN3.2 applies the applicant granted entry clearance or LTR as a partner or parent will now be on a 10 year route to settlement.
- This interpretation from the HO could be open to challenge- the SC did not decide there was a separate route to settlement but that alternative forms of income could be used on the ‘regular’ route to settlement.
- If during that 10 year route the application subsequently meet the Minimum Income Rule they can apply later to enter the 5 year route to settlement.
- Whichever route to settlement is granted, the children of applicant or partner will be granted leave of same duration and subject to same conditions as their parent.
Recourse to Public Funds
HO will allow recourse to public funds on the grant of entry clearance or leave to remain in two circumstances:
- If an applicant can provide satisfactory evidence that she or he is destitute (as defined under s95 Immigration and Asylum Act 1999); or
- There are particularly compelling reasons related to the welfare of the child of a parent in receipt of very low income
From the statement of changes, however, it is not clear how an applicant can both meet the Minimum Income Rule using alternative sources of income and either be destitute or on such a low income as to require public funds. Therefore how provision will be
Home Office Guidance
Currently no changes to the Guidance have been published by the Home Office following this statement of changes.