New rules "unnecessarily complex and place a lot of discretion in hands of Home Office staff"
The Joint Council for the Welfare of Immigrants (JCWI) said on Friday that the changes to the Immigration Rules announced last week by the Government to give effect to the Supreme Court judgment in MM (Lebanon) and Others are a step forward, but there are serious concerns about the "traditionally incomprehensible" way in which the new rules have been written and how they may be implemented by Home Office staff.
Image credit: UK GovernmentAs JCWI noted, the Supreme Court judgment in MM (Lebanon) and Others called on the Government to change the Immigration Rules so that the best interests of affected children are given primary consideration in decisions, and recommended that alternative sources of income be taken into account where the British spouse does not earn enough to meet the £18,600 minimum income needed for a partner visa.
In changes that will take effect from 10 August 2017, when the Home Office is considering an application that does not otherwise meet the requirements of the Rules, it will now have an obligation to take into account as a primary consideration the best interests of any child affected by the decision.
JCWI says that the changes also mean that where there are 'exceptional circumstances' which could result in unjustifiably harsh consequences for an applicant who does not meet the minimum income threshold, or for their partner or a relevant child, the Home Office decision-maker must consider any alternative sources of income they may have.
The Home Office's Statement of Changes lists the alternative sources of income which will be considered as: "(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 and reliable source of income or funds for the applicant or their partner, which is available to them at the date of application or which will become available to them during the period of limited leave applied for."
Carter Thomas Solicitors noted: "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 an 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."
JCWI called the changes "a step forward overall," but said the economic inequality embedded in the Rules for lower-income families without savings or support remains. JCWI was also concerned that the new rules "have been set out in the traditionally incomprehensible way that the Home Secretary chooses to make such changes," and added: "Our general concern is that these rules remain unnecessarily complex and place a lot of discretion at the hands of Home Office staff, and could be applied in a very haphazard way."
JCWI says much will depend on the wording of the as yet unpublished new Home Office guidance.
Saira Grant, Chief Executive of JCWI, criticised the changes as "inadequate" and said the Government had done "the absolute bare minimum" and failed to properly implement the recommendations in MM (Lebanon) and Others.
Some 5,000 applications were put on hold in the wake of the judgment in MM (Lebanon) and Others and JCWI says that families with applications on hold should consider whether they want to submit further evidence in order to meet the new Rules, including evidence of alternative sources of income that would show that refusing the application would result in unjustifiably harsh consequences. In addition, JCWI says it is particularly important to raise the impact on any children, in light of the need to make their best interests a primary consideration.
Solicitor Chris Desira also considered the changes to the Rules in an article here on Free Movement.
Desira summarises the main changes as:
- To allow for consideration of other sources of income to meet the Minimum Income Rule
- Where other sources of income are relied upon the applicant, partner and any children, will be granted leave on a 10-year route to settlement
- To give Appendix FM the cover of being compliant with 55 of the Borders, Citizenship and Immigration Act 2009
- To allow for recourse to public funds in certain circumstances
- Clarifying the drafting of the English language requirement for further leave to remain as a partner or parent
- Ensuring that a partner of a person here with refugee leave or humanitarian protection cannot qualify for settlement before that person has done so
Desira notes that the Secretary of State considers the changes mean that the Immigration Rules are now a complete framework for her consideration of Article 8 grounds under Appendix FM, though Desira concludes: "Whether the Home Office's belief that Appendix FM is now the complete code that they always hoped it would be is questionable. There are also soft spots to pick at concerning the belief that it is entirely section 55 compliant. As always time, and the courts, will clear this up for us. Who would have thought Appendix FM could get any more complicated?"
There was little media coverage of the changes to the Immigration Rules beyond reaction by the Scottish National Party's immigration spokesperson, Stuart McDonald, in The National newspaper.
Noting that the Statement of Changes had been issued the day before Parliament broke for the summer recess, McDonald told The National: "This is really a disgraceful way to treat families and true to form is delivered by the Tories at Westminster on the last full day before recess to avoid scrutiny.
"Today's changes are mean spirited and do as little to help families as the government thinks it can legally get away with. We need to drastically roll back on the reforms introduced in 2012 and which have caused so much misery for too many families."