By Primerose Makunzva
ON 9th July 2012, the Home Office introduced a new stringent financial requirement to be met by an applicant in an application for leave to enter or remain in the UK as a spouse of a British Citizen or a person who is settled in the UK.
The rule requires the sponsor (who is the partner or spouse in the UK) to be in receipt of an income of at least £18,600.00 per annum if they want to bring their partner or spouse to the UK from outside the European Union. In addition, the sponsor would need to earn
an additional £3800,00 for a child if they wanted to bring a partner and one child at the same time to the UK. If there is more than 1 child to bring to the UK, then the sponsor must earn an extra £2400.00 for each additional child. This means that a sponsor who wants to bring a wife and two children to the UK at the same time needs to have an income of at least £24,800.00 per annum. The rules went further to state that the sponsor must have been in receipt of the relevant income for a minimum period of at least 6 months prior to the date of application.
This means that one cannot meet the requirement if their sponsor has only been in that employment for less than 6 months. The sponsor would have to wait and gather pay slips for at least 6 months before the applicant can submit their application for entry clearance.The new rule was introduced along with a series of other immigration rules as the first batch of the immigration reforms to be introduced by the Conservative government. The government policy behind this minimum income threshold was to reduce the pressure on public funds as the government was concerned that some people coming to the UK as spouses and children were adding pressure on public finances as their sponsors were not able to maintain them financially without recourse to public funds.
Before these new rules, it was fairly easy to bring spouses to the UK as there was no minimum income threshold to prove that one can maintain their dependants in the UK. The maintenance rules before then were not onerous.Sponsors could even rely on certain benefits to prove that they have the money to maintain their dependants in the UK. However, the government realised that this rule was not effective enough as some sponsors would end up requiring more benefits to look after their dependants. To reduce the claims for further benefits, the new financial requirement was introduced under what is known as Appendix FM of the Immigration rules.
The result of the minimum income threshold was the separation of many families as most applicants could not meet the minimum income threshold because their sponsors in the UK do not earn enough money to sponsor their visa applications. Naturally, the Government was challenged by some litigants.Some of the legal challenges were brought in Judicial Review proceedings where the litigants argued that the Appendix FM rules were incompatible with the rights of the claimants and their partners under articles 8, 12 and/or 14 of the European Convention on Human Rights and also that it is unreasonable and
ultra vires common law principles.
The Admirative Court allowed their appeal but the Secretary of state appealed and her appeal was allowed by the Court of Appeal of England and Wales. The challenge went further to the Supreme Court.Now in its landmark ruling in the case of, MM and others v Secretary of State for the Home Department  UKSC 10, the Supreme Court has made a ruling in favour of the Government and upheld the minimum income rule as lawful. However, there is also some ray of hope from this case as the Court acknowledged that the rules and policies are problematic as they do not seem to consider the best interests and welfare of children which is a statutory duty which is upon the Secretary of State in immigration cases. The Supreme Court also noted that the rules should, at least, take into account other sources of income apart from the ones listed in the rules. The Home Office might revise the rules in view of this decision but from what we know about the Conservative Government’s immigration policy, they are likely to still come back with another set of problematic rules and that is a challenge for another day for lawyers.
What this means for applicants
For spouses and partners who do not meet the minimum income threshold,applications are most likely to be refused except in a few scenarios as follows; Where you can meet the financial requirements through having substantial savings. The amount of savings you will need will be calculated based on your sponsor’s income. If the sponsor is not employed, the applicant must have savings of £62,500.00 which they have held in their bank account for a period of at least 6 months. This figure is reduced where the sponsor is in receipt of an income which is below the minimum income threshold. For instance, where the sponsor does have a job, but only earns £8,800 per year from a part time or full time job, they will need to have savings of £40,500.00. The level of cash savings required will depend on the sponsor’s annual salary. Your partner is in receipt of certain disability benefits or Carer’s Allowance. People who are in receipt of these types of benefits are
exempted from meeting the minimum income rule. It is important to note that the sponsor’s income can also be from other sources other than employment such as rental income, dividends, pension etc. Different rules apply to different sources of income so applicants need to be clear how they can go about meeting the financial requirement which will be determined by their source of income.
TIPS FOR APPLICANTS
The minimum income threshold under Appendix FM currently does not apply to
children applying on their own for indefinite leave to enter the UK as dependants of a parent who is settled in the UK. The minimum income threshold in Appendix FM of the rules only applies when the children are applying at the same time as their nonEEA
national parent. It is worthwhile applying for a partner and children separately if one cannot meet the Appendix FM financial requirement for a partner and children. Of
course, splitting the applications means the children might be left behind whilst their parent travels to the UK and it might not suit everyone. Bear in mind also that the Home Office is going to revise the rules following the Supreme Court’s decision.
Another way of getting around the rules is to use the Surinder Singh route to bring family members to the UK. Please note that the Appendix FM financial requirement does not apply to those applying for leave to remain in the UK under the 10year
partner rule (these are the human rights applications). These applications are made by those who are already living in the UK. Please watch the video below for Primerose’s
video on applying for leave to remain in the UK under this category;
Please note that this article does not seek to provide direct legal advice in people’s individual cases. The purpose of this article is to just raise general awareness. If you are affected by the Immigration reforms in the UK, please seek advice from a professional.
Primerose Makunzva is a Solicitor and Partner at IPS Legal Solicitors LLP in Central London. She can be contacted on 07818 066522/ 0203 1765216 or firstname.lastname@example.org. Her Immigration law video updates YouTube or at http://www.ipslegal.com. You can also follow Primerose on twitter.
Disclaimer: This article only provides general information and guidance on immigration law. The writer will not accept any liability for any claims or
inconvenience as a result of this information.