Statement of Changes in Immigration Rules from 10th August 2017

The UK government has published a Statement of Changes to the Immigration Rules made in order to comply with the Supreme Court judgment in ‘MM (Lebanon) & Others’. The strict rules governing the minimum income of the husband or wife wishing to bring his/her spouse to the UK appear to be being relaxed slightly.

The ‘MM (Lebanon) & Others’ case was heard for 12 long months, and concerned the introduction into the UK Immigration Rules of a minimum income requirement for a UK citizen or resident wishing to bring a non-EEA spouse or partner into the UK. The plaintiff accused the government of being in breach of art. 8 ECHR (Article 8 of the European Convention on Human Rights which provides a right to respect for one’s ‘private and family…’) and claimed that it was unlawful and discriminatory. The Supreme Court eventually deliberated on the case in February and upheld the (government’s) 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. The court, however, ruled that the Home Office will need to take into account any unjustifiably harsh consequences for the family should they not meet the minimum income threshold, and that where an applicant cannot meet the minimum threshold, alternative and reliable third-party sources of funding ought to be considered.Nothing was done about that additional ruling, until July when a  published statement of changes made it clear that a new paragraph had been added to the law, (21A of Appendix FM-SE) 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 changes will take effect on Thursday 10th August 2017 and will apply to all decisions taken on and after that date, regardless of when the application was made.

The specified circumstances include (thanks to Peregrine Immigration):

  • 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 10 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.

The Explanatory Memorandum accompanying the Statement of Changes confirms that since the MM (Lebanon) judgment was handed down on 22nd 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.

This ruling comes after Jeremy Corbyn indicated that if Labour comes to power, the minimum income requirement will be scrapped altogether. Theresa May, was formerly Home Secretary, and oversaw the introduction of the minimum income requirement. Critics have accused May of introducing this law to be seen to doing something to reduce immigration figures, which did come down slightly (49,000) last year for example, but only by driving British citizens out!

Arguments against the minimum income requirements are that: it makes no practical sense; migrants from outside of the EU, children or spouses included, are not entitled to public benefits. The requirements do not take into account the wealth of the spouse. If a UK citizen marries the daughter of a Russian oligarch, the daughter is still considered a drain on the state. Most immigrants describe the vetting process carried out by British consulates around the world as being interfering and intrusive. The right of a British person to fall in love with another person in a foreign country, marry, and bring that person home appears to be based on income rather than any other qualities. £18,600 (plus £2,500 for each child) may not sound like a lot for anybody in the S.E. of the UK, however as you move into the North, Scotland Wales and the S.W., this can be a lot of money. The Home Office does not take into account assets such as property, which is illogical.

Advocates of the minimum income requirements feel that a British citizen should have taken into account the income requirements before marrying, and often cite the general held feeling that immigrants bring over other members of spouses’ families furthering migration which they feel exist within the UK.

The original case in ‘MM (Lebanon) & Others’ bought before the UK Supreme Court focused on Article 8 of the European Convention on Human Rights. It is perhaps interesting to debate whether or not Brexit will mean that such cases will be heard in the UK after Brexit, however we have been told that the majority of EU laws will be transferred onto the UK statute book before Brexit occurs. Negotiations are talking place now. Watch this space.

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