The judgement that challenged the minimum income requirement, MM (Lebanon) & Others v the Secretary for the Home Department  UKSC 10, was one of the most awaited judgments in the past year. To recap, the ruling concerned a series of conjoined cases challenging the £18,600 minimum income requirement ('MIR') introduced in July 2012 as part of 'Appendix FM' to the Immigration Rules, along with the the Immigration Directorate Instruction on family migration giving guidance to entry clearance officers ('the Instructions'). Although the supreme court dismissed the appeal, holding that the MIR is acceptable in principle, it highlighted that the Rules and the Instructions unlawfully fail to take proper account of the s 55 duty. It also ruled that the Instructions also require amendment to allow consideration of alternative sources of funding when evaluating a claim under article 8. Our previous blog on the subject can be found here.
The immediate action by the Secretary of State was to put a temporary hold on those applications which fell short of the MIR and involved a child under the age of 18 years. The reported number of cases on hold at the end of June were around 5,000. The numbers will have undoubtedly increased since then.
The government's full response subsequently came in the form of changes to the Immigration Rules. These have been in effect since 10 August 2017. Our previous blog covered the changes introduced into the general provisions of Appendix FM. In short, the Secretary of State has to consider whether the Minimum Income Rule can be met from other sources of income, financial support or funds if:
- the MIR is not otherwise met, and
- from the information provided by the applicant, 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
To incorporate their s 55 duties, GEN 3.1 to 3.3. provides that the Secretary of State must now take into account, as a primary consideration, the best interests of any relevant child. The Explanatory Note asserts that the rules now provide a complete framework for the Secretary of State’s consideration of an application under Appendix FM on Article 8 grounds.
A promising claim, but how accurate is that assertion? And how does one go about providing information about the 'exceptional circumstances' and 'unjustifiably harsh consequences'? From the viewpoint of many applicants, the possibility of separation from their loved one(s) is a harsh consequence which they feel is not justified just because they do not earn enough or have substantial savings in a pot.
The Home Office elaborate on the terminology within their updated guidance at 13.3 - 13.4:
- “Exceptional circumstances” means circumstances which could or would render refusal of entry clearance or limited leave to remain a breach of ECHR Article 8 (the right to respect for private and family life), because refusal could or would result in unjustifiably harsh consequences for the applicant, their partner or a relevant child, or would result in unjustifiably harsh consequences for another family member whose Article 8 rights it is evident from the application would be affected by a refusal.
- “Unjustifiably harsh consequences” are ones which involve a harsh outcome(s) for the applicant or their family which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others.
This involves consideration of whether refusal would be proportionate, taking into account all the facts of the case and, as a primary consideration, the best interests of any relevant child. The case-law makes clear that where the applicant does not meet the requirements of the Rules, and has established their family life in “precarious” circumstances (e.g. 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 is formed or exists with a person outside the UK who has 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.
The guidance then goes on to consider all relevant factors which they would take into account. These are listed as bullet points below but explored in much depth within the guidance:
- The best interests of a relevant child
- Ability to lawfully remain in or enter another country
- The nature and extent of the family relationships involved
- Where relevant, the circumstances giving rise to the applicant being separated from their partner and or/child in the UK
- The likely impact on the applicant, their partner and/or child if the application is refused
- Serious cultural barriers to relocation overseas
- The impact of a mental or physical disability or of a serious illness which requires ongoing medical treatment
- The absence of governance or security in another country
- The immigration status of the applicant and their family members
- Whether there are any factors which might increase the public interest in refusal
- Cumulative factors should be considered
Examples of circumstances in which “unjustifiably harsh consequences” are likely to arise and not likely to arise are also listed. These provide common factual scenarios that one can use as a check list to see where they stand.
Where information as to exceptional circumstances is not provided with the application, the decision making teams will now write to the applicant (or their representative) requesting that the relevant information be provided within 21 days.
Applicants wishing to rely on these provisions should provide the required evidence of the other sources of income. These are listed in the new paragraph 21A of Appendix FM-SE as:
- 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.
If the position as to exceptional circumstances and other sources of income is accepted by the decision maker, then the applicant will embark on a 10 year route to settlement. As the route to settlement for applications which meet the MIR is 5 years, this effectively doubles the time it would take to settle. There is however scope to switch from a 10 year to a 5 year route if the requirements are met with the next application. With the visa granted for 30 months ( or 33 months for entry clearance) at a time, many will no doubt plan ahead to ensure they avail the opportunity for an earlier settlement.
If you wish to discuss your particular circumstances with us, please use the contact tab on our website.