UNITED KINGDOM - Statement of Changes to the Immigration Rules Affects Family Immigration
On 20 July 2017, the UK government published a Statement of Changes to the Immigration Rules, made in order to comply with the Supreme Court judgment in MM (Lebanon) & Others, which ruled that the Home Office must take into account alternative sources of funding when deciding whether to grant entry clearance or leave to remain as a partner or child under the family Immigration Rules in Appendix FM.
The changes will take effect on Thursday 10 August 2017 and will apply to all decisions taken on and after that date, regardless of when the application was made.
What has changed?
The Statement of Changes inserted a new paragraph 21A into Appendix FM-SE, effective 10 August 2017, stating that the Home Office decision-maker is obligated to consider whether, in ‘specified circumstances’, the £18,600 minimum income requirement 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 not otherwise met; where refusal of the application would breach the applicant’s human rights or those of their partner and/or children; where the decision will have 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 decision maker of its genuineness, credibility and reliability.
Those successfully applying under the specified circumstances provision will be granted entry clearance on a ten-year route to Indefinite Leave to Remain instead of the standard five-year route, with scope to apply under the five-year route where they subsequently meet the relevant requirements.
In February this year, in the case of MM (Lebanon) & Others, the Supreme Court upheld the principle behind the Minimum Income threshold which requires a UK citizen or a settled person to demonstrate a minimum income of £18,600 per annum before they can apply for their families from non-EEA states to join them.
However, the court ruled that the Home Office will need to take into account the any unjustifiably harsh consequences for the family should they not meet the minimum income threshold.
The judges therefore confirmed that where an applicant cannot meet the minimum threshold, alternative and reliable third party sources of funding ought to be considered.
The Explanatory Memorandum accompanying the Statement of Changes confirms that 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 is expected that those cases will now be considered.
United Kingdom nationals or settled persons looking to sponsor a partner or child for entry clearance or leave to remain should consult a UK immigration specialist to see how these changes affect their application.