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.