The changes, that will take effect from 10 August 2017, implement the February Supreme Court judgment MM (Lebanon) and Others on the minimum income requirement for entry clearance and leave to remain applications as a partner or child under Appendix FM. In the judgment, the Court ruled that the minimum income requirement is lawful in principle, but can be unlawful in individual cases.
The Supreme Court judgment called on the Government to change the Immigration Rules so that the best interests of affected children are given primary consideration in decisions. It recommended that alternative sources of income be taken into account where the sponsor does not earn enough to meet the Â£18,600 minimum income needed for the application.
It must now be evident from the information provided in the application that there are “exceptional circumstances” which could render the refusal of the application a breach of Article 8 of the European Convention on Human Rights (right to respect for private and family life) because it could result in unjustifiably harsh consequences for the applicant, the partner or a child if the other sources of income are not considered. Consequently, the Home Office decision-maker must consider any alternative sources of income they may have.
The responsibility is on the applicants to demonstrate that they are unable to meet the standard minimum income requirement and that a refusal would result in unjustifiably harsh consequences for them, their partner or children. If an application is approved on this basis, the route to settlement is 10 years. Applicants can switch into the standard 5 year route is they are subsequently able to demonstrate that they meet the main rules.
If you have questions about your immigration status or need advice on the matter, please feel free to contact our senior solicitor Pam Barar or our immigration team.
Effective from 22 February 2017, decision-making on some applications by non-EEA nationals has been paused by the Home Office to enable the consideration of the implications of the judgment handed down by the Supreme Court in the case MM (Lebanon) & others v SSHD  UKSC 10
The delay on the decision-making affects cases – in particular, under Appendix FM to the Immigration Rules where the application would fall to be refused and where the reasons for refusal would include the applicant’s failure to meet the minimum income threshold for partners and dependent children and/or the associated evidential requirements under Appendix FM-SE. The same situation applies to the applications under Appendix Armed Forces paragraphs 314(i)(a), 314(i)(d), 316A(i)(d) or 316A(i)(e) of Part 8 relating to an adopted child, and the applications under Appendix FM which fall to be refused and a child is involved.
All other applications will continue to be processed and decided as normal.
Can I still submit a partner or child application under Appendix FM?
Yes, but you should take into account that the Home Office will pause consideration of your application in the circumstances above.
Can I still submit my application in person at a premium service centre?
Yes, but you should take into account that the Home Office will pause consideration of your application in the circumstances above.
What happens if the Home office pauses consideration of my leave to remain application and I want to withdraw it or to get my passport returned because I need to travel?
If you have already applied and now wish to withdraw your application, you may do so. The Home Office will not generally refund your application fee.
If you are seeking the return of your passport to travel outside the Common Travel Area, you may do so but the Home Office will treat your leave to remain application as withdrawn. The Home Office will not generally refund your application fee.
How long will cases be paused?
We will provide further information as soon as possible.
English Language Requirements
The applicant who wish to apply for further leave to remain in the UK will be required to satisfy the English language requirements at A2 level. This requirement applies to applicants who completed 30 months in the UK on a 5-year route to settlement either as a partner or a parent. This rule will come into force on 1 May 2017. Please note, for those applicants whose expiry date is before 1 May 2017, the application will be assessed in accordance with the rules in force before 30 April 2017.
False Representations or failure to disclose material fact
Applications made on or after 24 November 2016, the following merits are now considered when assessing the application whether the applicant has made false representations or has failed to disclose any material fact in the past, specifically: “The applicant has made false representations or failed to disclose any material fact in a previous application for entry clearance, leave to enter or remain or a variation of leave, or in a previous human rights claim; or did so to obtain from the SoS or a third party a document in support of his/her application.
Children/minimum income thresholds
The applications in relation to children made on or after 24 November 2016, will only be successful for entry clearance if the parent applies for the leave or already has obtained one. In addition, the minimum income thresholds have been amended in respect to application that include dependent children of the applicant’s parent’s partner as well as the applicant’s parent.
For applications decided on or after 24 November 2016, the NHS debt has been lowered to £500 from the initial £1000 as a discretionary basis for unsuccessful applications for reasons of suitability.
For further details and queries please contact us directly.
The appellant is a Nigerian citizen. He is married to a Dutch citizen, who is working in the United Kingdom. Although the Secretary of State accepts that the person, the appellant, describes as his wife is a qualified person for the purposes of the Immigration (European Economic Area) Regulations 2006, she does not accept that the appellant is married as claimed.
The appellant says that his marriage was conducted in accordance with customary law and was subsequently registered by the local customary court, which issued a marriage certificate. In support of his claim, the appellant has produced an affidavit from his father, a court order, the marriage certificate and statements from the appellant and others.
The Secretary of State’s reason for disputing that the appellant is married is, in essence, that she does not believe that the evidence produced is sufficient to establish that the appellant is married according to Nigerian law. If the appellant is not married according to the laws of the country in which the marriage is said to have taken place, then he is not married according to English law.
In this appeal the only concern is whether the appellant has contracted a marriage. It is not argued whether he is in a registered partnership or a durable relationship. These are different types of relationships and, as confirmed in the European jurisprudence just cited, cannot be regarded as marital relationships for the purposes of EU law.
Unlike a non-marital ‘durable relationship’, it cannot be established merely by proof of facts, for example of cohabitation: establishing a marriage requires both proof of relevant facts and demonstration that a relevant legal order regards those facts as constituting a marriage.
Whether a person is married is a matter that falls within the competence of the individual Member States. From this it is inferred that usually a marriage certificate issued by a competent authority will be sufficient evidence that a marriage has been contracted. Of course, a document which merely calls itself a marriage certificate does not have any legal status.
A certificate will only have legal status if it is issued by an authority with legal power to create or confirm the facts it attests, that is, by an authority that has such competence. Where a marriage document has no legal status or where such status is unclear, other evidence may be used to establish that a marriage has been contracted. However, once again it is found that these principles do not help to determine whether a person is a spouse, because it will depend on identifying the authority with legal power to create or confirm that a marriage has been contracted.
In a situation where the marital relationship is disputed, the question of whether there is a marital relationship is to be examined in accordance with the laws of the Member State from which the Union citizen obtains nationality and from which therefore that citizen derives free movement rights.
The appellant’s claimed marriage did not take place in the Netherlands. The claim is that the ceremony took place in Nigeria whilst the appellant and his claimed spouse remained in the United Kingdom.
The appellant’s evidence includes extracts from the Dutch Civil Code. Although this is presented as evidence, there is no indication as to whether the version provided is up to date. Furthermore, no assistance has been given as to how it should be interpreted or as to whether the appellant’s marriage ceremony would be regarded as a lawful marriage under the Dutch Civil Code.
The original Dutch version or confirmation have not been provided that the translation is either authorised or certified. A marriage that is contracted outside the Netherlands shall not be recognised in the Netherlands where such recognition obviously would be incompatible with Dutch public order.
Was the appellant’s marriage certificate issued by a competent authority? The Secretary of State has provided in evidence the Nigerian Births, Deaths, (compulsory Registration) Act 1992 and two letters from the British High Commission, Abuja which discuss how Nigerian law might be interpreted and applied, although perhaps not from the point of view of a person with legal expertise.
The two letters from the High Commission explain that the information it contains has been obtained from Nigerian lawyers and given that the Secretary of State relies on their observations it can be assumed that she does not dispute the accuracy of the information contained.
Proxy marriages can only be accepted as valid in Nigerian law if conducted under customary law. Where legal requirements prescribe a marriage certificate to be presented, then only a certificate issued under the Marriage Act will be acceptable. Hence, most couples conduct “registry weddings” in addition to their customary marriage.
The letter also confirms amongst others the following points which are relevant to this appeal: 1. A Nigerian citizen can marry a foreigner by proxy under customary law in a ceremony that is held in Nigeria. 2.The validity of a customary marriage in Nigeria does not depend on it being registered within 60 days. 3.No certificates are issued in respect of customary marriages by any recognised official body and no official records are kept.
We turn to the Nigerian Births, Deaths, etc (Compulsory Registration) Act 1992. Part V of the 1992 Act relates to the registration of customary marriages or divorces. This legislation appears to have been amended and supplemented by a Statutory Instrument in 1996. Part VII of the 1996 legislation indicates that there is a requirement that a customary marriage should be registered within sixty days and that certain details are to be provided and included in any certificate issued.
The details required for registration are:
The certificate should include most of these details together with the registration number, the date of marriage, the date of registration and the signature of the court registrar.
The certificate provided by the appellant does not include many of the elements required by the statutory provisions. For example, it does not give the background details of the appellant or his claimed wife. It is also noted that although it has been advised that the customary marriage ceremony occurred on 26 November 2011, the marriage certificate was issued on 1 March 2012, well outside the sixty-day period stated in Nigerian law. We have no evidence that the person who signed the certificate or the court order was a registrar.
In light of these considerations it is wholly unpersuadable that the certificate has been issued by a competent authority in Nigeria. The document is no more than a written note of a statement made by a person with no legal authority. In other words, the document is not the emanation of an authority with legal power to create or confirm what it attests.
The lack of evidence on this point further undermines the appellant’s claim that he has produced a marriage certificate issued by a competent authority.
The proper approach under the law of England and Wales has been set out by the Tribunal in CB (Brazil). In summary, a proxy marriage would be regarded as valid under English and Welsh law if it was valid according the law of the place where it took place, recognising that the marriage took place where it was celebrated.
The fact that the evidence does not support the view that the appellant’s proxy marriage would be regarded as a marriage in Nigeria means that it would not be regarded as a marriage under the law of England and Wales.
In light of the findings, it is not accepted that the appellant has shown that he is in a marital relationship with a qualified person and therefore he cannot benefit from EU free movement and residence rights on that basis. The conclusion has been reached on the basis that the appellant’s marriage is not one that would be recognised in the laws of the Netherlands because it would not be recognised under the law of Nigeria, and insofar as relevant, nor in England and Wales.
Proxy marriage would be regarded as valid under English and Welsh law if it was valid according the law of the place where it took, recognising that the marriage took place where it was celebrated. A marriage certificate issued by a competent authority such as Registry would be deemed lawful and recognised in the UK.
A person who is the spouse of an EEA national who is a qualified person in the United Kingdom can derive rights of free movement and residence if proof of the marital relationship is provided.
The production of a marriage certificate issued by a competent authority (that is, issued according to the registration laws of the country where the marriage took place) will usually be sufficient. If not in English (or Welsh in relation to proceedings in Wales), a certified translation of the marriage certificate will be required.
A document which calls itself a marriage certificate will not raise a presumption of the marriage it purports to record unless it has been issued by an authority with legal power to create or confirm the facts it attests.
In appeals where there is no such marriage certificate or where there is doubt that a marriage certificate has been issued by a competent authority, then the marital relationship may be proved by other evidence. This will require the Tribunal to determine whether a marriage was contracted.