Minimum Income Requirement
As from 10 August 2017, the Home Office, UK Visas and Immigration will bring in changes to the immigration rules affecting the income requirements for partner applications. This will affect fiancé(e)s, spouses, civil and unmarried partners applying to enter the UK or remain here.
What has changed?
Prior to the changes on 10 August, the Immigration Rules required that the sponsoring partner had a minimum gross income of £18,600, or where they were on specified benefits and unable to meet the minimum income requirement, that they had adequate maintenance.
Now, where the £18,600 income requirement cannot be met, it must be evident from the supporting evidence that there are ‘exceptional circumstances’ which would mean that a refusal of the application would have unjustifiably harsh consequences for the applicant, their partners, or a child under the age of 18 if other sources of income are not considered.
Why is this change being brought in?
In a case decided by the Supreme Court in February 2017, called MM (Lebanon) and others v Secretary of State for the Home Department  UKSC 10, it was found that the £18,600 minimum income requirement was lawful. However the Judgement also invited the Home Secretary to amend her instructions and guidance to revise the way in which other sources of income could be taken into account and to take into account the impact on children.
How will the changes affect visa and in-country partner applications?
Where the income requirement cannot be met and it is evident that there are exceptional circumstances, the Home Office decision maker must consider whether alternative forms of income, financial support or funds can be taken into account.
Alternative forms of income, financial support or funds include:
• a credible guarantee 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 available to the couple.
The rules require the decision maker to determine the genuineness, credibility and reliability of such other income, financial support or funds.
The documentary evidence required to support exceptional applications is specific and applications are likely to be refused where inadequate documentary evidence is provided. We expect that the Home Office will issue guidance to caseworkers on how the new rules will be interpreted for applications after 10 August 2017.
The new rules also require that decision makers have regard, as a primary consideration, to the best interests of any child affected by their decision.
Where applications are successful due to exceptional circumstances but the £18,600 income requirement is not met, partners will be placed on the 10-year route to settlement. Those individuals will however have the ability to apply to transfer to the five-year route to settlement where their financial circumstances change.
Clifford Johnston’s immigration solicitors envisage that the changes will assist many individuals and families who have faced challenges as a result of the previous, restrictive, income requirements. There are around 5,000 applications outstanding which will now be considered by the Home Office. It may be the case that a number of those applications will be refused but they should be given a right of appeal.