In July 2012 the government introduced changes to the Immigration Rules as they applied to partners and introduced a minimum income requirement. The Rules also set out what sources of income would be acceptable.
Following the decision of the Supreme Court in MM (Lebanon) and others given on the 22nd February 2017, decision making had been put on hold in respect of applications which fell for refusal because they did not meet the financial requirement of Appendix FM of the Immigration Rules. As at 30th June 2017 there were around 5,000 applications on hold. The government has introduced changes to the Immigration rules on the 20th July 2017 which are intended to give effect of the judgement in MM (Lebanon) and others. This judgement had found that an applicant should be able to rely on other reliable sources of earnings or finance, beyond those which were permitted under Appendix FM and FM-SE where the refusal of an application would amount to a breach of Article 8 of the European Convention of Human Rights. It also found that Appendix FM did not correctly reflect the Secretary of State’s duty under Section 55 of the Borders, Citizenship, and Immigration Act 2009 which requires the Secretary of State to have regard, as a primary consideration, to a child’s best interest in an immigration decision affecting them.
The changes that have been implemented by the statement of changes to the Immigration Rules require the decision maker in specified circumstances, to consider whether the minimum income requirement is met if other sources of income, financial support or funds which are set out in the new Paragraph 21A of Appendix FM-SE are taken into account.
Appendix FM-SE paragraph 21A states that the following sources of income can now be taken into account: - a) a credible guarantee of sustainable financial support to the applicant or their partner from a third party; (b) credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or (c) any other credible or reliable source of income for the applicant or their partner which is available to them during the period of limited leave applied for.
The Immigration rules then go to set out the factors that a decision maker needs to take into account in assessing whether the financial support is genuine, credible, and reliable.
These provisions only apply where it is evident from the application that there are exceptional circumstances which would render refusal of entry clearance or leave to remain a breach of Article 8 of the European Convention on Human Rights because such refusal would result in unjustifiably harsh consequences for the applicant, their partner or a child.
Where an application is allowed on the basis of the “other sources of income” then an applicant would be granted leave on the 10 year route to settlement and further may be able to access public funds in certain circumstances. The Home Office have updated their guidance to include relevant factors which need to be taken into account in deciding whether there are exceptional circumstances. The guidance can be found here https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/636615/Appendix_FM_Section_1.0a_Family_Life_as_a_Partner_or_Parent_-_5-year_rou....pdf (see page 55 onwards).
Drummond Miller has a team of practitioners with considerable experience in family immigration law and will be happy to advise. Please do get in touch with our Glasgow or Edinburgh Office for assistance.