- Headline changes
- MM (Lebanon) recap
- Changes to the General Requirements of Appendix FM
- How will this test work?
- ‘Unjustifiably harsh consequences’
- Relevant factors
- Illustrative examples
- Where there would be ‘unjustifiably harsh results’ from a refusal, what rules now apply?
- The type of leave granted
- Recourse to Public Funds
On 20 July 2017 the Home Office published changes to the Immigration Rules intended to give effect to findings made by the Supreme Court in MM (Lebanon) & Others v the Secretary for the Home Department  UKSC 10 on the Minimum Income Requirement. The new rules come into effect on 10 August 2017, coinciding with the publication of 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, partner and any children, will be granted leave on a 10-year route to settlement
- Incorporation of an explicit alternative Article 8 assessment where ANY provisions of the rules are not met and there would be “unjustifiably harsh consequences”
- To give Appendix FM the cover of being compliant with section 55 of the Borders, Citizenship and Immigration Act 2009
- To allow for recourse to public funds in certain circumstances
- Clarifying the drafting of the English language requirement for further leave to remain as a partner or parent
- Ensuring that a partner of a person here with refugee leave or humanitarian protection cannot qualify for settlement before that person has done so
We will consider the Home Office guidance which applies these changes in detail below. But first, a quick reminder of how we got here.
MM (Lebanon) recap
The MM (Lebanon) judgment 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 or which otherwise fall for refusal and involve a child under the age of 18 years.
The Supreme Court in MM (Lebanon) 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 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 now its guidance.
As of 30 June 2017, there were around 5,000 such applications on hold. The Home Office says that the changes made will now allow them to decide those applications, and future applications, consistent with the findings of the Supreme Court, so immigration practitioners should expect an influx of immigration decisions from today.
Changes to the General Requirements of Appendix FM
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 (using the infamous phrase) ‘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 years old if the other sources of income are not considered.
Further, paragraph GEN.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 or Part 9 of the Immigration Rules are not met. A test of “unjustifiably harsh consequences” is suggested in GEN.3.2.(2) but this does not seem to be additional to or over and above Article 8.
The Home Office considers this to bring the test of proportionality under Article 8 into the Rules and the Rules, she says, are now a complete framework for her consideration of Article 8 grounds under Appendix FM.
How will this test work?
According to the recently published guidance (p.g.56), the Home Office will only go on to consider alternative sources of income where:
the decision maker must consider whether refusal of the application could breach ECHR Article 8 because it could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child….The decision maker must take into account, as a primary consideration, the best interests of any relevant child.
Where Home Office Case Owners take the view that ‘unjustifiably harsh consequences’ could occur, they must give the applicant the chance to show that they meet the Minimum Income Requirement through ‘any other credible and reliable source(s) of income, financial support or funds available to the couple’ (discussed below), if they have not already done so. 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 a breach of ECHR Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family… they must grant entry clearance or limited leave to remain
Where refusal of the decision definitely would result in unjustifiably harsh consequences then entry clearance must be granted.
‘Unjustifiably harsh consequences’
The Home Office defines theses consequences in the guidance as :
“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.
The guidance describes this as a ‘high threshold’, and that it is likely to only be in ‘unusual cases’ where applicants will be permitted to rely on ‘other credible and reliable sources of income’ as a result of meeting it. This test, though, is not as high as the ‘ultimate’ test (where unjustifiably harsh circumstances definitely would result). Application of the definition is said to involve:
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 also specifically addresses the entry clearance position. A key question in the assessment is said to be:
why can’t the UK partner go or remain overseas to continue or maintain their family life with the applicant? Alternatively, is it proportionate to expect the family to separate or for existing separation to be maintained?
The Home Office guidance mandates consideration of all of the circumstances of the case in each application. The guidance provides a (non-exhaustive) list of ‘relevant factors’ to be considered:
- Best interests of the child (which has its own section at 13.6)
- Ability to lawfully enter or remain in 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
This list of factors and the accompanying guidance will be required reading for all practitioners. However, to give a flavour of the approach taken in the guidance, subsection d) is adorned with this tasty nugget, almost certainly as a reason to find that ‘unjustifiably harsh’ results will not flow from a refusal:
whether the couple chose to commence their family life together whilst living in separate countries, or while one of them was temporarily in another country, therefore knowing that they would have to meet the immigration requirements of one country or another in order to live together
As if, when deciding to commence a relationship, a couple should consider to what extent the immigration rules of their respective nations will allow their relationship to be a long-term proposition:
‘I’m sorry, we can’t see each other anymore. It’s not you, it’s … the UK immigration rules’.
The guidance gives some examples of what would not usually be considered ‘unjustifiably harsh consequences’:
- Lack of knowledge of a language spoken in the country in which the family would be required to continue or resume living
- Being separated from extended family members
- A material change in the quality of life for the family in the country in which they would be required to continue or resume living
The guidance also points to two examples where ‘unjustifiably harsh consequences’ might be considered to eventuate:
- The applicant and their partner have a child in the UK with serious mental health or learning difficulties
- The applicant’s partner has a genuine and subsisting parental relationship with a child in the UK of a former relationship, is taking an active role in the child’s upbringing, and the particular circumstances of the case mean that (taking into account the child’s best interests as a primary consideration) it would be unjustifiably harsh to expect the child to relocate overseas with the applicant’s partner, or for the applicant’s partner to do so without the child.
There is a rather large caveat bolted on to that latter example, where the applicant’s partner began family life in the full knowledge that the applicant
could not meet the requirements for entry clearance to the UK, then it might be reasonable to expect the applicant’s partner to choose between maintaining their family life overseas with the applicant and retaining their family life in the UK with the child of their former relationship.
Where there would be ‘unjustifiably harsh results’ from a refusal, what rules now apply?
Where applicants do not meet the Minimum Income Requirement, but the Home Office accepts that refusal could lead to unjustifiably harsh consequences, they will now be permitted to (attempt to) rely on other sources of income, financial support or funds to make up the Minimum Income Requirement. If this evidence was not sent in with the original application, the Case Owner will write to the applicant (or their representative) requesting that the relevant information be provided within 21 days.
This is one of the main changes wrought by MM (Lebanon): 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 Requirement.
Of course, this leads to an obvious question: why not allow all applicants to rely on these other sources of income and funding? Why only for those applicants where refusal could lead to ‘unjustifiably harsh consequences’.
It’s not as if the evidential criteria have been relaxed (in any way), as we see below. Surely, you are either financially supported, or you are not. Why the Home Office has decided to create two evidential categories is difficult to justify.
Anyway, the main (new) sources of funding for this select group are as follows:
- a credible guarantee of sustainable financial support to the applicant or their partner 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 income and/or financial support derived from these sources must enable the Minimum Income Requirement to be met.
Paragraph 21A also makes for a ‘genuineness test’ with the onus on the applicant to demonstrate this for third party support or employment and self-employment.
Financial support from a third party
The guidance explains what this looks like in practice. Where a decision-maker is considering financial support from a third party he or she is required to consider:
- whether the applicant has provided verifiable documentary evidence from the 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 requirement 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 the 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.
Prospective earnings from employment or self-employment of the applicant or their partner
As we see, the evidential barriers have not been lowered, and applicants will still need to be careful to submit evidence with the Home Office which closely adheres to these requirements. Not all of the niggly requirements are included here, so anyone involved in making one of these applications should check back with the original guidance (see paragraph 10.12 for this section):
- whether, at the date of application, a specific offer of employment has been made, or a clear basis for self-employment exists. In either case, such employment or self-employment must be expected to commence within three months of the applicant’s arrival in the UK (if the applicant is applying for entry clearance) or within three months of the date of application (if the applicant is applying for leave to remain);
- whether the applicant has provided verifiable documentary evidence of the offer of employment or the basis for self-employment […]
- whether, in respect of an offer of employment in the UK, the applicant has provided verifiable documentary evidence […]
- whether the applicant has provided verifiable documentary evidence that at the date of 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 a similar level of responsibility;
- whether the applicant has provided verifiable documentary evidence that the person to be employed or self-employed has relevant professional, occupational or educational qualifications and that these are recognised in the UK;
- whether the applicant has provided verifiable documentary evidence that the person to be employed or self-employed has the level of English language skills such prospective employment or self-employment is likely to require. For example, this may include evidence of nationality of a majority English-speaking country, of educational qualifications taught or researched in English or of passing a secure English language test at or above the relevant level of the Common European Framework of Reference for Languages with a Home Office-approved test provider;
- the extent to which this source of income is relied upon by the applicant to meet the minimum income requirement 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
- where an offer of employment is relied upon, and where the proposed employer is a family member or friend of the applicant or their partner, the likelihood or otherwise of a relevant change in that relationship during the period of limited leave applied for.
Any other ‘credible and reliable’ source of income
The guidance concludes with a catch-all provision, covering any source of income which is not future (self-) employment or third party support:
- whether the applicant has provided verifiable documentary evidence of the source;
- whether that evidence is provided by a financial institution regulated by the appropriate regulatory body for the country in which that institution is operating, and is signed, dated and witnessed or otherwise independently verified;
- where the income is or the funds are based on, or derived from, ownership of an asset, whether or not the applicant has provided verifiable documentary evidence of its current or previous ownership by the applicant, their partner or both;
- whether the applicant has provided sufficient evidence to enable the decisionmaker to assess the likelihood of the source of income or funds being available to them during the period of limited leave applied for; and
- the extent to which this source of income or funds is relied upon by the applicant to meet the income requirement 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
The type of leave granted
Where alternate sources of income are recognised by the Home Office and an applicant granted entry clearance or leave to remain as a partner or parent as a result, they are punished by having to wait twice as long for settlement by entering the 10-year route to settlement.
This interpretation by the Home Office is arguably up for challenge. 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 on the ‘regular’ route to settlement. If, during that 10-year route, the applicant can subsequently meet the Minimum Income Rule she or he can apply later to enter the 5-year route to settlement.
Whichever route to settlement is granted, the children of the applicant or partner will be granted leave of the same duration and subject to the same conditions as their parent regardless of whether it is in their best interests to be granted a shorter duration of leave.
But again, it seems very strange that an applicant, who has shown that they meet the financial requirement as a result of future earnings, or third-party support, or in some other way, should for some reason be treated differently from a person who meets the threshold by refence to the ‘usual’ Home Office criteria. What is the policy basis for that?
Recourse to Public Funds
According to the rules, the Home Office will permit access to public funds for those granted leave on this basis in two circumstances:
- If an applicant can provide satisfactory evidence that she or he 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 SSHD will allow for recourse to public funds on the grant of entry clearance or leave to remain.
Although it is not clear from the changes how an applicant can both meet the Minimum Income Rule using alternative sources of income and either be destitute or on such a low income as to require public funds.