One of the most difficult aspects of making an application, either for entry clearance or leave to remain as a partner under the Immigration Rules, is meeting the financial requirements set out in Appendix: Family Members - Specified Evidence (Appendix FM-SE) of the Immigration Rules - see Home Office Immigration Rules. This Appendix runs to twenty-eight pages, as does the Guidance from the Home Office.

Appendix FM-SE sets out the "Specified evidence applicants need to provide to meet the requirements of the Rules contained in Appendix FM". Therefore, when you are making an application for entry clearance, or leave to remain as a partner, you need to have regard to both Appendix FM and Appendix FM-SE. These Appendices were introduced in July 2012. There is a category of applicants, which fall outwith the Rules as they were introduced in July 2012, and are governed by the Rules found in Part 8 of the Immigration Rules, but most applicants will now require to meet the requirements of Appendix FM and Appendix FM-SE when making a partner application.

Appendix FM-SE sets out very detailed requirements on the type of evidence that you need to produce to the Entry Clearance Officer, or to the Home Office, to demonstrate that you meet the financial requirements. There are specific requirements to evidence, for example, salaried employment, self-employment, income from employment and/or shares in a limited company, non-employment income, eg property rental income, dividends, savings, maintenance payments and  pension and cash savings.

Each type of income must be evidenced in its own specific way.

There will, of course, be situations where it is not possible to produce the documentation specified in Appendix FM-SE. What does an applicant do in those circumstances?

This is where Paragraph D(e) of Appendix FM-SE comes into play. This Paragraph states:

"Where the decision-maker is satisfied that there is a valid reason why a specified document(s) cannot be supplied, eg because it is not issued in a particular country or has been permanently lost, he or she may exercise discretion not to apply the requirement for the document(s) or to request alternative additional information or document(s) be submitted by the applicant".

The recent case of Sultana and Others (Rules: Waiver/Further Enquiry: Discretion [2014] UKUT 540(IAC) deals exactly with this point. In this case, the applicant ran a decorating business, but was unable to provide the required documentation for a self-employed applicant. The Upper Tribunal has stated that where an applicant is seeking to rely on Paragraph [D] of Appendix FM-SE, the applicant or their adviser can request that the Entry Clearance Officer, or the decision-maker at the Home Office, exercise the discretion as set out in Paragraph [D]. The President of the Upper Tribunal states in his judgment:

"We add the following by way of general guidance. When visa applications of this kind are being compiled, applicants and their advisers must obviously be alert to the totality of the applicable requirements enshrined in Appendix FM-SE. Alertness to the various obligatory requirements is obviously essential. We would also consider applicants and their advisers who consider that any of the discretionary powers conferred on the Entry Clearance Officer by Paragraph [D] should be exercised in their favour to proactively make this case when submitting their application. It would be highly desirable to draw to the attention of the ECO the specific provision/s of Paragraph [D] invoked in support of a request to exercise discretion, and to set out fully the grounds of such request".

Applicants should therefore not assume that an Entry Clearance Officer, or a decision-maker, will exercise discretion where they have not been specifically requested to do so by the applicant or their adviser.

If the Entry Clearance Officer/decision-maker is requested to exercise their discretion under Paragraph [D] of Appendix FM-SE, and they refuse to do so, or fail to give proper reasons for their refusal to do so, then this may become an appealable point in an appeal before the First Tier Tribunal.

Appendix FM and Appendix FM-SE set out complicated and detailed Rules, and we would suggest that there are few cases which are straightforward. Where it would appear that an applicant is unable to meet those requirements, for example if they have permanently lost the relevant evidence, then this recent decision from the Upper Tribunal stresses the importance of applicants and advisers invoking the relevant Paragraph of the Immigration Rules in any application. Failure to refer the Entry Clearance Officer/decision-maker to the relevant Paragraph may result in an application being refused, and an appeal unlikely to succeed because the applicant had failed to draw the attention of the Entry Clearance Officer/decision-maker to their power to exercise discretion.

The Immigration Teams at Edinburgh and Glasgow at Drummond Miller have wide experience in presenting both applications to the Entry Clearance Officer and to the Home Office for leave to enter, and leave to remain, and further, in presenting appeals before the First Tier Tribunal. Please do get in touch should you require assistance.