On 10 August 2017, the Home Office’s new guidance in relation to the minimum income threshold (MIT) required to sponsor a partner or child to settle in the UK came into force.
Earlier this year, the Supreme Court ruled that the MIT which requires a sponsor to have a minimum income of £18,600 to bring a foreign spouse, was lawful.
However, the Court also ordered the Home Office to amend its guidance to take into account
- proper consideration of the best interests of any children involved; and
- alternative sources of income and financial support (apart from the sponsor’s income)
A link to the new guidance can be found at the bottom of this page.
The main changes are summarised below.
Reliance on Alternative Sources of Income
The Home Office must now consider whether refusal of the application could result in unjustifiably harsh consequences for the applicant or their family.
If such consequences could result from the refusal, the Home Office can consider alternative sources of income rather than relying on the sponsor’s income alone.
These can include
- reliance on third party support where a credible guarantee of an offer of support can be provided (e.g. family or parents supporting with accommodation or money);
- reliance on credible prospective earnings from sustainable employment or self-employment of the applicant (e.g. a job offer);
- reliance on any other credible source of income.
There is a new ‘genuineness test’ with the burden on the applicant to prove that the job offer and third party support offer is genuine.
The guidance states that it is likely to only be in ‘unusual cases’ where applicants will be permitted to rely on ‘other credible and reliable sources of income’.
The guidance and amended Rules also details the specific evidence that will need to be provided which must be carefully read before making any application.
Even where the MIT cannot be met from alternative sources, if there are exceptional circumstances where refusal would result in unjustifiably harsh consequences for the applicant or their family, the Home Office must grant entry clearance or limited leave to remain.
Therefore, even if the couple do not meet the MIT, the applicant must be granted entry clearance if the refusal would result in unjustifiably harsh consequences.
The guidance sets out a very stringent test with a number of factors to be considered in making the decision, including:
- Best interests of the child
- Ability to lawfully enter or remain in another country
- The nature and extent of the family relationships involved
- Where relevant, the circumstances giving rise to the applicant being separated from their partner and or/child in the UK
- The likely impact on the applicant, their family if the application is refused
- Serious cultural barriers to relocation overseas
- The impact of a mental or physical disability or of a serious illness which requires ongoing medical treatment
- The absence of governance or security in another country
- The immigration status of the applicant and their family members
- Whether there are any factors which might increase the public interest in refusal
- Cumulative factors should be considered
Detailed notes for each of these points is set out in the guidance which must be read carefully before submitting any application.
Grant of Leave
Applicants who are granted entry clearance in the circumstances above will be granted leave to remain on the 10 year route to settlement, rather than the 5 year route.
This is arguably unlawful and not in accordance with the Supreme Court ruling.
The changes do not appear to reflect the spirit of the Supreme Court ruling and are designed to trigger further refusals and appeals.
It may well be that the higher courts will need to revisit this in the years to come.
In the meantime, it is critical that the new guidance and rules are carefully considered before any new application is made (links to both below).
The full judgment in the Supreme Court Case of MM can be read here.
You may also find the following post useful: 7 useful tips on how to prevent your spouse visa being refused.
Visadreams.com, Diary of an Immigration Lawyer, is a blog run by Fahad Ansari, the director and principal solicitor of Riverway Law, a niche UK immigration and nationality law practice based in London. If you would like any advice or assistance in relation to your immigration matter, please do not hesitate to email me at firstname.lastname@example.org or submit your details here.