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What are the new Rules on the minimum income requirement to sponsor your spouse or partner to join you in the UK – Aldijana Hoad of Paragon Law explains:

The Home Office has published new guidance on the minimum income requirement following the Supreme Court judgement in the case of MM (Lebanon) & Others v SSHD [2017] UKSC 10.

 

The case of MM (Lebanon) considered the lawfulness of the minimum income requirement, brought into force on 9 July 2012, which requires a minimum income of £18,600 (or higher where dependent children are involved) for British citizens and settled persons to sponsor their non-EU national spouse. The Supreme Court found that the minimum income requirement was lawful, but that the Home Office’s rules needed to be amended to take proper account of best interests of children involved in such applications and other possible sources of income and support. The Home Office consequently amended the Immigration Rules (“the Rules”) in July 2017 and guidance has now been issued on how the Rules will be implemented. The new Rules apply to all decisions taken after 10 August 2017 regardless of the date of application.

The guidance reflects a two stage approach that will be taken by the Home Office.

Stage 1

First, the Home Office will consider whether the minimum income requirement of £18,600 is met through the following specified sources:

  • Income from salaried or non-salaried employment of the partner.
  • Non-employment income e.g. income from property rental or dividends from shares.
  • Cash savings of the applicant and/or partner above £16,000.
  • State, occupational or private pension of the applicant and/or partner.
  • Income from self-employment, and income as a director or employee of a specified limited company in the UK, of the partner (and/or the applicant if they are in the UK with permission to work).
  • Where applicant’s partner is in receipt of benefits such as Disability Living Allowance, Carer’s Allowance, Industrial Injuries Disablement Benefit, etc. the applicant is exempt from meeting the minimum income requirement but instead has to provide evidence of ‘adequate maintenance’.

If the minimum income requirements are met through the sources listed above, the applicant will be granted leave under the 5-year route to settlement. If it is not met, the Home Office will consider whether the requirement can be met through alternative sources of income but only in cases, where there is evidence of exceptional circumstances, which could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child, if the application is refused. In such cases, the following alternative sources of income will be taken into account:

  • third party support.
  • prospective earnings from employment or self-employment of applicant and partner.
  • any other credible and reliable source of income available.

The new guidance contains detailed criteria on which the Home Office will rely to assess the genuineness, credibility and reliability of the above sources. Each case will be considered on its own merits, in the light of all the information and evidence provided by the applicant. If the minimum income requirement is met through alternative sources of income, the applicant will be granted leave under the 10-year route to settlement.

The Home Office defines “unjustifiably harsh consequences” as the ones which involve a hard outcome(s) for the applicant or their family which is not justified by the public interest, including maintaining effective immigration controls, preventing burdens on the tax payer, promoting integration, etc. It involves consideration of whether refusal would be proportionate, taking into account, all facts of the case and, as a primary consideration, the best interests of any relevant child.

In June 2017, the Home Office had around 5,000 applications on hold pending an amendment to the Rules. The Home Office will now be considering these applications and where there are exceptional circumstances and refusal could result in unjustifiably harsh consequences, the applicants will be contacted in writing and given 21 days to provide evidence of alternative sources of income. This evidence will be considered in addition to the evidence provided already.

Stage 2

Secondly, where an applicant does not meet the minimum income requirement and/or other requirements under the Rules, the Home Office will consider whether there are exceptional circumstances which would result in unjustifiably harsh consequences for the applicant, their partner or a relevant child if the application is refused. Where there are such circumstances, the applicant will be granted leave under the 10-year route to settlement.

If you require advice on whether you meet the minimum income requirement or have received a letter from the Home Office asking you to provide evidence of alternative sources of income within 21 days, please contact our offices on 0115 9644 123 or enquiries@paragonlaw.co.uk and we will be happy to assist you