Can I come to the UK as a Partner/Spouse without Enough Money

Can a foreign husband or wife or partner still come to the UK on a Spouse Visa (under the 5-year route) if the minimum £18,600 maintenance requirement is not met under the Immigration rules?

The Supreme Court in the matter of MM (Lebanon) and others Secretary of State for the home Department {2017} UKSC 10 upheld in principle the minimum income rule which requires an income of at least £18,600, or higher where dependent children are involved, for British citizens and settled individuals in the UK to sponsor a foreign spouse or partner. The rule also applies to a fiancé(e) of such a sponsor. The rules for fiancés is in the main very similar to those of partners whether married or not.

However, the Supreme Court also held that the rules and policies used by the Home Office and their immigration directorate instructions, to assess such cases would need to be amended to take proper account of the impact on children, and their best interests therefore, and the interests of other vulnerable persons, in terms of other possible sources of income that may be available , from third parties for example , and which would not prior to the decision have been taken into account in assessing an application for entry clearance to the UK , or an extension of stay made from within the UK to vary conditions of leave to remain.

As a result of the Supreme Court decision the immigration rules have been amended insofar as the General Requirements are concerned to require the decision maker to consider whether the minimum income rule can be met from other sources of income, financial support from third parties or funds as set out in the new paragraph 21A of Appendix FM- SE.

An applicant must therefore show that notwithstanding the fact that the immigration rules may not be met by the applicant or his/ spouse or partner ( the only consideration under the rules), insofar as the minimum requirement is concerned, there are nevertheless exceptional circumstances which could render the refusal of the application a breach of article 8 of the human rights act 1998, namely a breach of their family life because it could result in unjustifiably harsh consequences for the applicant, the partner or a child under the age of 18 years of age if the other sources of income are not considered by the decision maker.

The above considerations by the decision maker which in almost all cases will, therefore, be the Home Office or the entry clearance officer, brings into play the test of proportionality under Article 8 of the Human Rights Act 1998 within the rules. This makes it even more obvious that the rules in themselves are not a complete code and other considerations must be taken into account when considering Article 8 grounds under Appendix FM. It must not be forgotten that Article 8 was incorporated into the rules by way of Appendix FM and the new immigration rules came into effect on 9 July 2011.

The Home Office or the entry clearance officer must consider alternative sources of income when a breach of Article 8 of the ECHR as incorporated in the 1998 act is a prime consideration.

Where it is considered that unjustifiably harsh consequences could occur, on the civil balance of probabilities, the said decision-maker must give the applicant the chance to show that they can meet the minimum income requirements through alternative credible and reliable sources of income, financial support or funds available to the couple even if they do not possess those funds themselves. They must give this chance to the applicant if the applicant has not already in his/ her application set out those minimum alternative sources of income. It may be that the applicant has simply pleaded article 8 grounds in stating that he/ she does not meet the minimum financial requirements. That in itself would not be sufficient and therefore the decision maker is placed on notice to go back to the applicant and give him/ her a chance to provide further and additional information. This requirement with respect to a further enquiry is sometimes referred to as a flexibility test or an evidential flexibility test to be carried out by the decision maker. In the circumstances the decision maker must write to the applicant or their representative, requesting that the relevant information provided within 21 days.

This is one of the main changes brought about by the Supreme Court case that whereas these individuals would previously have been automatically refused, they are now permitted to rely on a greater number of sources of income or financial support in order to meet the minimum income requirements.

In considering what is meant by “unjustified harsh consequences”, reference will be made to the consequences of refusal for the applicant or their family which is not justified in the balance by the public, interest including the maintenance of effective immigration control, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights of freedoms of others.

In considering the above, the best interests of any child of the family will be a primary consideration. Where the applicant does not meet the requirements of the immigration rules but has established a 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, by analogy, where family life is formed or exists with a person outside the UK who has no right to enter this country and does not meet the requirements of the rules for entry clearance, Article 8 does not require that they are granted entry in the absence of such exceptional circumstances.

There is a list of non- exhaustive guidelines that the Home Office must consider from their own guidance notes in making a decision. This also applies to entry clearance decisions. For example the best interests of the child, ability to lawfully enter or remain in another country by for example the British or settled spouse or partner, the nature and extent of the family relationship 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 in 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, and cumulative factors which should be considered as well.

When considering the financial support from third parties, the decision maker will be required to look into documentary evidence from third-party in question of their guarantee of financial support; whether that evidence is signed, dated and witnessed or otherwise independently verified; whether the third party has provided sufficient evidence of their general financial situation to enable the decision maker to assess the likelihood of the guaranteed financial support continuing for the period of limited leave applied for; whether the third-party has provided verifiable documentary evidence of the nature, extent and duration of any current or previous financial support which they have provided to the applicant or their partner; the extent to which this source of financial support is relied upon by the applicant to meet the minimum income requirements under Appendix FM. This is because it is necessary to assess the extent of the risk that the requirement will not in fact continue to be met over the whole course of the applicant’s leave, because the source proves not to be genuine or sustainable and, the likelihood or otherwise of a change in a third party’s financial situation or in their relationship with the applicant or the applicant’s partner during the period of limited leave applied for.

The decision maker can consider a variety of financial possibilities as alternatives to the minimum financial requirement under Appendix FM of the rules. Therefore, prospective earnings from employment or self- employment of the applicant or their partner may also be taken into account. This may be a more difficult area to consider as one is looking into the future.

The guidance notes in this area following the Supreme Court decision would require employment or self- employment to be expected to commence within three months of the applicant’s arrival in the UK if the applicant has applied for entry clearance, or within three months of the date of the application, if the applicant is applying for leave to remain.

whether the applicant has provided verifiable documentary evidence of the offer of employment on all the basis of self- employment is another matter to be taken into account. Furthermore the decision maker will consider whether in respect of an offer of employment in the UK, the applicant has provided verifiable documentary evidence, whether the applicant has provided verifiable document evidence that at the date of the application, the person to be employed or self-employed is in, or has recently been in, sustained employment or self- employment of the same or a similar type of the same or a similar level of complexity and at the same or at a similar level of responsibility. Indeed, whether the applicant has provided verifiable documentary evidence that the person to be employed or self-employed has relevant professional occupational educational qualifications and that these are recognised in the UK is another issue to be considered, as is whether the applicant has provided verifiable documentary evidence that the person to be employed or self-employed as the level of English language skills such as the prospective employment or self- employment is likely to require.

When alternative source of income is recognised by the Home Office or entry clearance officer, an applicant granted entry clearance or leave to remain as a partner or indeed as a parent as a result, will be obtaining leave to enter or remain under the human rights criteria and not under the immigration rules, and they are punished by having to wait twice as long for settlement by entering under the 10-year route to settlement. It may be that this particular interpretation by the Home Office could be challenged. The Supreme Court did not decide there was a separate route to settlement but that alternative forms of income could be used to meet the minimum income rule. If during the 10-year route the applicant can subsequently meet the minimum income requirements he or she should be in a position to apply later to enter the 5-year route to settlement (Indefinite Leave to Remain).

Whichever route to settlement is granted, the children of the applicant or partner will be granted leave of the same duration and are subject to the same considerations and conditions as their parent, regardless of whether it is in their best interest to be granted a shorter duration of leave.

Finally, according to the rules, the Home Office will permit access to public funds for those granted leave on this basis,( which in fact is on the basis of Article 8 ), into circumstances, if the applicant can provide satisfactory evidence that he or she is destitute as defined under section 95 of the Immigration and Asylum Act 1999, or there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income, then the Secretary of State will allow for recourse to public funds on the grant of entry clearance or leave to remain. This reflects also the possibility that entry clearance may be granted even if equivalent funds to the minimum requirement of for example £18,600 are not met by the funds of far less. That appears to be in line with the spirit of the Supreme Court decision.

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