On 20th July 2017 the Home Office published changes to the Immigration Rules intended to give effect to the findings made by the Supreme Court in MM (Lebanon and others v SSHD)  UKSC 10 on the minimum income requirement. The new Rules came into effect on 10th August 2017 coinciding with the publication of the new Home Office guidance explaining how the changes should be applied.
The main changes to the minimum income requirement policy are as follows:
- Other sources of income will be considered to meet the minimum income rule in certain circumstances.
- Where other sources of income are relied upon the applicant's partner and any children will be granted leave on the 10 years route to settlement
MM (Lebanon) judgement concerned applications which failed to meet the minimum income rule for entry clearance or leave to remain as a partner or child under Appendix FM, which otherwise fell for refusal and involved a child under the age of 18. The Supreme Court in upheld in principle the minimum income law which requires an income of at least £18,600 for a British citizen or any settled individual to sponsor a foreign spouse. However, the Court also held that the Rules and policies used by the Home Office to assess such cases would need to be amended to take proper account of the impact on children and other possible sources of income and support. This caused the Home Office to amend its Rules and its guidance. The general requirements have been amended to require the decision maker to consider whether the minimum income Rule can be met from other sources of income, financial support or funds as set out in the new paragraph 21A of Appendix FM-SE. It must now be evident from the information provided in the application, that there are exceptional circumstances which could render the refusal of the application a breach of Article 8, because it could result in "unjustifiably harsh" consequences for the applicant, the partner or a child under the age of 18, if the other sources of income are not considered.
Further, paragraph (g) in 3.2 now requires the decision maker to consider whether entry clearance or leave should be granted on the basis of Article 8, where any of the requirements of Appendix FM part 9 of the Immigration Rules are not met. The Home Office considered this to bring a test of proportionality under Article 8 under the Rules, and the Rules are now a complete framework for consideration on Article 8 grounds, under Appendix FM.
How will Minimum Income Requirements work?
According to the Home Office guidance the Home Office will only go on to consider alternative sources of income if the decision maker considers that refusal of the application could breach ECHR Article 8 or that could result in unjustifiably harsh consequences for the applicant, their partner and relevant child. When the Home Office caseworker states the view that unjustifiably harsh consequences could occur, they must give the applicant a chance to show that they meet the minimum income requirements through any other credible reliable sources of income, financial support or funds available to the couple, if they have not done so already. This means that applicants or their representatives should be contacted in these circumstances and given 21 days in which to provide the required evidence.
However, there is a second test to be applied. The decision maker must consider whether there are exceptional circumstances which would render refusal of the application or breach of ECHR, because it would result in unjustifiably harsh consequences for the applicant's family. When the refusal of a decision definitely would result in unjustifiably harsh consequences, the entry clearance must be granted.
The Home Office defines these harsh consequences in the guidance as ones which involve a harsh outcome for the applicant or the family, which is not justified by the public interest of maintaining effective immigration controls. This is described as a high threshold, and it is likely only to occur in unusual cases, where the applicants would be permitted to rely on other credible and reliable sources of income. However, this test is not as high as the ultimate test, where unjustifiably harsh circumstances would definitely result. If the applicant has established a family life in precarious circumstances when they have limited leave to enter or remain in the UK, something very compelling is required to outweigh the public interest in refusal. Likewise where family life formed or existed with a person outside the UK who had no right to enter the UK, and does not meet the requirements of the Rules for entry clearance, Article 8 does not require that they be granted entry in the absence of such exceptional circumstances. So the key question in the assessment is why can't the UK partner go and remain overseas, to continue or maintain their family life with the applicant.
The relevant factors according to the Home Office guidance is a consideration of all the circumstances of the case in each application. The guidance provides a non-exhaustive list of relevant factors to be considered.
The guidance gives some examples of what would not usually be considered unjustifiably harsh consequences. The guidance points out examples where unjustifiably harsh consequences might be considered. One is if the applicant and the partner have a child in the UK with serious mental health or learning difficulties, or the applicant's partner has a genuine and subsisting parental relationship with a child in the UK of her former relationship, and is taking an active role in the child's upbringing.
The creation of two evidential categories is difficult to justify. Why not just allow all applicants to rely on these other sources of income. Why create two categories?
The income and financial support derived from the other sources must enable the minimum income requirement to be met and paragraph 21A makes therefore a genuineness test, with the onus on the applicant to demonstrate the third party support employment and self-employment.