Since the Supreme Court judgment in MM (Lebanon) & Others was handed down on 22 February 2017, the Secretary of State has placed a temporary hold on decision making in respect of applications falling for refusal under the Immigration Rules, in Appendix FM, with which the judgment was concerned. These are applications which fail to meet the minimum income requirement for entry clearance or leave to remain as a partner or child under Appendix FM or which otherwise fall for refusal under Appendix FM and involve a child under the age of 18 years. As of 30 June 2017, there were around 5,000 such applications on hold. The Secretary of State considers that the changes set out in this statement will enable her to decide those and future applications consistently with the findings of the Supreme Court judgment. Those applications which are refused will normally have a right of appeal to the First tier Tribunal (Immigration and Asylum Chamber) against that decision.
In the statement of changes announced today which will take effect on the 10th August 2017, the changes set out are intended to give effect to those findings. In particular, they insert new general provisions in Appendix FM (paragraphs GEN.3.1. to 3.3.) which require the decision maker, in the specified circumstances, to consider whether the minimum income requirement is met if the other sources of income, financial support or funds set out in the new paragraph 21A of Appendix FM SE are taken into account. The specified circumstances are that, firstly, the minimum income requirement is not otherwise met and secondly, it is evident from the information provided by the applicant that there are exceptional circumstances which could render refusal of the application a breach of Article 8 because it could result in unjustifiably harsh consequences for the applicant, their partner or a child under the age of 18 years who it is evident would be affected by a decision to refuse the application.
Refer to the new paragraph 21A of Appendix FM SE, inserted by these changes which makes provision as to the other sources of income, financial support or funds which the decision maker will take into account in such cases. These area 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. Paragraph 21A also makes provision for particular factors which the decision maker will consider in determining the genuineness, credibility and reliability of such other source of income, financial support or funds;
Require the decision maker, where an application for entry clearance or leave to remain made or considered under Appendix FM does not otherwise meet the relevant requirements of the Immigration Rules, to go on to consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of the application a breach of Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family. This brings the test of proportionality under Article 8 into the Rules. That test was previously applied by the Secretary of State in considering whether to grant leave outside the Rules on Article 8 grounds.
The full statement of Changes HC290 is to be found here.