Important changes to UK settlement visa requirements from August 10th 2017

[Tony M]

Well, we were waiting for it, and here it is. The government has made the changes recommended by the Supreme Court in the financial requirement hearing promulgated in February.  This is a very brief summary :

The Supreme Court judgment in MM (Lebanon) & Others upheld the lawfulness under Article 8 (the right to respect for private and family life) of the European Convention on Human Rights of the minimum income requirement for entry clearance or leave to remain as a partner or child under the family Immigration Rules in Appendix FM and of the basis, set out in Appendix FM-SE (specified evidence), on which that requirement must generally be met. However, the judgment found (a) that other reliable sources of earnings or finance, beyond those currently permitted under those Appendices, should be taken into account in circumstances where refusal of the application could otherwise breach Article 8; and (b) that Appendix FM did not 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 full Command Paper is attached.  It will require some reading, before the minutiae can be understood, but it seems to be good news.  Third party financial support, and income  from prospective jobs in the UK will be taken into account by the ECO.  The requirement for an ECO to consider the best interests of children affected by a decision in any settlement visa application is now written into the rules.

 

 

60429_HC_290_Accessible.pdf

Edited July 21, 2017 by Tony M

[7by7]

For a detailed analysis of this welcome news, see Home Office makes changes to Appendix FM Minimum Income Rule following MM case from Free Movement.

[bobrussell]

An interesting approach to dealing with a problem!

Standard settlement pretty much unaffected but change to a 10 year route! Quite imaginative and I admit to being a little impressed with the way they have sidelined the issue. If they can approach Brexit with similar skills we will be fine (no tangents please!).

It will allow the best interests of the children involved to be considered without opening the floodgates for those unable to meet the requirements. Will do nothing for the pensioner couple where income is below the levels but so is expenditure.

 

Edit: allows a couple to convert back to the standard five year settlement route if finances allow. Does that mean both earnings are taken into account I wonder?

Non-EU partner starts work immediately on arrival, does that count? Not waded through the detail!

 

Edited July 21, 2017 by bobrussell

[Tony M]

 Well, not such good news after all. The devil is in the detail, as they say. The government have very little intention of giving in on this, and are, yet again, using the "exceptional circumstances" card to attempt to avoid conceding anything (my underscoring) :

"The changes set out in this statement are intended to give effect to those findings. In particular, they insert new general provisions in Appendix FM (paragraphs GEN.3.1. to 3.3.) 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 ;

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 [2017] 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 "

We can hope that the Supreme Court tell them that their smoke and mirrors "concession" needs looking at again. Well, I hope that, anyway.

[brewsterbudgen]

In short: would I be able to bring over my Laotian wife to live with me and our young (British) son, even if I didn't meet the financial requirements, as our marriage is not legal in Laos and therefore myself and my son are unable to settle there. (Hypothetically).

[Tony M]

1 hour ago, brewsterbudgen said:

In short: would I be able to bring over my Laotian wife to live with me and our young (British) son, even if I didn't meet the financial requirements, as our marriage is not legal in Laos and therefore myself and my son are unable to settle there. (Hypothetically).

 

I don't think there can be any definitive answer to that question.  Here is a snippet from the Supreme Court determination that might give some guidance :

The source of the “exceptional circumstances” requirement where the MIR is not met is the Immigration Directorate Instruction: Family Migration: Appendix FM Section 1.0a: Family Life (as a Partner or Parent): 5-year Routes and Appendix FM Section 1.0b: Family Life (as a Partner or Parent) 10-Year Routes. (We have been supplied with the versions published in August 2015.) Section 14 of the former requires Entry Clearance Officers, where an application does not meet the requirements in the Rules, to consider whether there may be exceptional circumstances which make refusal a breach of article 8 rights, or whether there are compelling compassionate reasons which might justify a grant of entry clearance, “because refusal would result in unjustifiably harsh consequences for the applicant or their family”. However, Entry Clearance Officers are not allowed to grant entry clearance outside the Rules, so an officer who thinks that the case might meet this “very high threshold” must refer the case to the Referred Casework Unit (“RCU”) in London.

The Instructions go on to state that the Rules themselves reflect the position of the Secretary of State on proportionality and reflect how the balance should be struck between individual rights and the public interest. Only in exceptional circumstances will a decision taken in accordance with the Rules lead to a disproportionate outcome. This is likely to occur “only rarely”. Section 14.1 of the 2015 Instructions gives an almost identical explanation of “exceptional circumstances” to that given in the December 2012 Instructions current at the time of the decision of Blake J:

“‘Exceptional’ does not mean ‘unusual’ or ‘unique’. Whilst all cases are to some extent unique, those unique factors do not and generally render them exceptional. For example, a case is not exceptional just because the criteria set out in the Immigration Rules have been missed by a small margin. Instead ‘exceptional’ means circumstances in which refusal would result in unjustifiably harsh consequences for the individual or their family such that refusal of the application would not be proportionate under article 8. The fact that refusal may, for example, result in the continued separation of family members does not of itself constitute exceptional circumstances where the family have chosen to separate themselves. Cases that raise exceptional circumstances to warrant a grant of entry outside the Rules are likely to be rare.”

Decision-makers are also told that the consideration of exceptional circumstances must include consideration of any factors relevant to the best interests of a child “in the UK”; but that requiring the Rules to be met is likely to lead to a disproportionately detrimental effect on the best interests of the child in the UK “only rarely”.

 

“The key issue is whether there are any factors involving the child in the UK that can only be alleviated by the presence of the applicant in the UK. Consideration needs to be given to the effective and material contribution that the applicant’s presence in the UK would make to safeguarding and promoting the welfare of the child. This contribution needs to be of a significant kind, eg:

 Support during a major medical procedure, particularly if this is unforeseen or likely to lead to a permanent change in the child’s life.

 Prevention of abandonment where there is no other family member in the UK to care for a child. Simply reducing the time and resource spent on a child’s case by agencies such as children’s services is unlikely to be sufficient. The applicant’s presence in the UK must form part of achieving a durable solution for the child that is in his or her best interests.”

The Guidance goes on to state that:

“Other means of meeting the child’s best interests … need to have been considered and ruled out. The normal need for a child to be given genuine and effective care by both parents is reflected in the Immigration Rules and there must be substantive reasons why the child’s best interests in this regard can only be met by granting entry clearance outside the Rules.”
So the fact that parents have chosen to travel at different times, or maintained separate life-styles in two countries, will not amount to a degree of separation that amounts to exceptional circumstances. On the other hand “the impact of natural disaster on the overseas parent’s housing or employment” making it impossible for the child to “return” to live with him or her “may count”.

 

My underscoring in the above.  It may or may not be relevant to your situation.   I think we now have to wait for some new guidance (a new Appendix FM-SE) to be issued, to let us know exactly how this is going to operate and affect applications. At the moment, it seems to me  that the Home Office hasn't made it any easier really for applicants and sponsors to meet the financial threshold, if they can't, firstly, jump the exceptional circumstances hurdle. My immediate thoughts are that ECOs will now refuse an application on the grounds that they don't have to consider the new ways of meeting the financial threshold, as there are no exceptional circumstances in the application that require them to do so, and will let it be sorted out at an appeal.   As it says above :

 

Cases that raise exceptional circumstances to warrant a grant of entry outside the Rules are likely to be rare.”

 

Possibly, the "outside the rules" bit can be left out now, as the Home Secretary considers the changes to bring the test of proportionality under Article 8 into the Rules, and the Rules, she says, are a complete framework for her consideration of Article 8 grounds under Appendix FM.  (Article 8 is the right to family life).  So, that would now read  "cases that raise exceptional circumstances to warrant a grant of entry are likely to be rare" ?    None of this should affect those applicants and sponsors who can meet the current financial requirements, but, as we know, there are many who cannot meet those requirements. I'm not sure these new changes do much for them at all. We'll have to wait and see.

 

 

 

Edited July 23, 2017 by Tony M

[brewsterbudgen]

Thanks Tony.  The bit about maintaining "separate lifestyles" is interesting.  In my case we will have lived together as a family for a number of years in Thailand as I have been working there. Once I stop working I and return to the UK (mainly for my son's education), we will be forced to live separately unless my wife can join us in the UK.  Anyway, I don't mean to sidetrack this thread and it's not currently an issue for me. But it gets me thinking!

[Tony M]

6 minutes ago, brewsterbudgen said:

Thanks Tony.  The bit about maintaining "separate lifestyles" is interesting.  In my case we will have lived together as a family for a number of years in Thailand as I have been working there. Once I stop working I and return to the UK (mainly for my son's education), we will be forced to live separately unless my wife can join us in the UK.  Anyway, I don't mean to sidetrack this thread and it's not currently an issue for me. But it gets me thinking!

 

I don't think it sidetracks the thread at all, as there will likely be many who will have to demonstrate "exceptional circumstances" in order to benefit from the new "concessions" from the Home Secretary.  The more examples and information that people can provide, the better !