THE Home Office has published a Statement of Changes in Immigration Rules which was presented to Parliament on 20 July 2017. The purpose of the statement is to make changes to the family Immigration Rules following the decision of the Supreme Court in the Case of MM (Lebanon) v SSHD  UKSC 10.
by Andrew Nyamayaro
The case of MM (Lebanon) dealt with the Minimum Financial Requirement that requires a gross income of £18,600 to sponsor a partner to come to the UK. The rules require an additional £3,800 for the first child and £2,400 for any other additional child. This requirement applies to British and settled sponsors and their families but not EEA nationals. It also applies to refugees who formed their families after they left their country of origin.
The Minimum Financial Requirement was found to be lawful and acceptable in principle by the Supreme Court. However, the Supreme Court further held that the Home Office Instructions and Rules unlawfully fail to take into account the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009, to have regard to the need to safeguard and promote the welfare of children when making decisions which affect them. The Supreme Court held that the Home Office Instructions also require amendment to allow consideration of alternative sources of funding when evaluating a claim under Article 8.
The Explanatory Memorandum to the Published Statement of Changes in Immigration Rules states that there are around 5,000 applications on hold which fail to meet the minimum income requirement. The Secretary of State considers that the changes set out in the statement will enable her to decide these outstanding and any future applications.
Following the ruling in MM (Lebanon), I have noticed that the Home Office has been delaying making decisions in any application whether made inside or outside the United Kingdom, which involve a partner and/or child whether or not it’s likely to fail to meet the financial requirement. Some cases have been outstanding for more than 6 months which, again, is generally in breach of the Home Office policies.
The changes are intended to permit the use of other sources of income or finance beyond those currently permitted under Appendix FM and Appendix FM-SE in the Immigration Rules. The changes further seek to give direct effect to the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard as a primary consideration, to a child’s best interests in an immigration decision affecting them.
The changes in particular insert new general provisions in Appendix FM 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 are 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. 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 (through guidance) in considering whether to grant leave outside the Rules on Article 8 grounds. The substance of the test was upheld by the Supreme Court in Agyarko & Ikuga v the Secretary for the Home Department  UKSC 11. These changes mean that the Immigration Rules now provide a complete framework for the Secretary of State’s consideration on Article 8 grounds of applications under Appendix FM by a partner, child, parent or adult dependent relative; and
Require the decision-maker, in considering applications under the new general provisions in paragraphs GEN.3.1. to 3.3. of Appendix FM, to have regard, as a primary consideration, to the best interests of any child affected by the decision, thereby giving explicit effect within Appendix FM to the Secretary of State’s existing duty under section 55 of the Borders, Citizenship and Immigration Act 2009.
Make further consequential provision in respect of the changes arising from the Supreme Court judgment in MM (Lebanon) & Others. This includes providing that where the new general provisions in paragraph GEN.3.1. or GEN.3.2. of Appendix FM apply, an applicant granted entry clearance or leave to remain as a partner or parent will be on a 10-year route to settlement (Indefinite Leave to Remain), with scope to apply later to enter the five-year route where they subsequently meet the relevant requirements; and
Make other minor and technical changes and clarifications to Appendix FM. In particular: – ensuring that children are granted leave of the same duration and subject to the same conditions as their parent, who is or has been granted leave under these Rules; – ensuring that the partner of a person here with refugee leave or humanitarian protection cannot qualify for Indefinite Leave to Remain before that person has done so; and – clarifying the drafting of the English language requirement for further leave to remain as a partner or parent.
The Changes set out in the statement of Changes will take effect from 10 August and will affect all decisions made on or after that date.
If you, your partner, or child(ren) was refused entry clearance or leave to remain under the current rules, you may need to re-apply if, for instance, you have a credible job offer or credible third support. We are yet to see how in reality the Secretary of State will implement these changes.
Andrew Nyamayaro is the principal of Tann Law Solicitors, a specialist immigration and asylum law firm in Coventry. He can be contacted on e-mail firstname.lastname@example.org or office phone 02477632323. Visit Tann Law Solicitors’ website at www.tannlaw.co.uk
Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information.