The Government has published a new Statement of Changes regarding the minimum income requirement for non-EEA partners and spouses.
Appendix FM of the Immigration Rules sets out the conditions to be met for non-EEA family members to join their sponsoring partner in the UK. One of the most onerous conditions is the minimum income requirement.
Under the current minimum income requirement, the sponsoring spouse or partner must have a gross annual income of at least £18,600, plus £3,800 for the first dependent non-EEA national child and £2,400 for each additional child. The couple can satisfy this requirement if they have savings of at least £16,000 plus two and a half times the shortfall in the sponsor’s earnings.
Earlier in the year we considered the Supreme Court’s ruling in MM (Lebanon) & Ors v Secretary of State for the Home Department [2017] UKSC 10 in which it held that the minimum income requirement for spouses and partners was lawful, but that:
- the rules did not take account of the Secretary of State’s duty to safeguard the welfare of children under section 55 Borders, Citizenship and Immigration Act 2009, and;
- alternative sources of funding should be considered when there is a claim under Article 8 ECHR.
The Statement of Changes (HC 290)
In light of the Supreme Court judgment, the Government has published a Statement of Changes in Immigration Rules (HC 290) setting out the circumstances when a departure from the standard minimum income requirement as contained in the Immigration Rules may be considered.
Effective from 10 August 2017, in cases where there are ‘exceptional circumstances’ such that a refusal would breach Article 8 ECHR, the decision-maker may consider alternative sources of income, financial support or funds as described in the new Rules. These include:
- credible guarantees 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 for the applicant.
The onus is on the applicant to demonstrate that they are unable to meet the standard minimum income requirement and that a refusal would result in unjustifiably harsh consequences for them, their partner or child under 18. If a spouse visa application is approved on this basis, the route to settlement is 10 years. Applicants can switch into the standard 5 year route is they are subsequently able to demonstrate that they meet the main rules.
Although the minimum income requirement is still a high hurdle for many applicants, the changes go some way to making this route more accessible.
The above is just an overview and the new Rules are extremely complex. Each case will need to be considered carefully and if you need legal advice, please contact us.
