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Recent changes to the Immigration Rules confirm that the Caseworkers should now give more consideration to wider sources of income and financial support when assessing family visa applications against the strict £18,600 minimum income requirement.

The Background

On the 22 February 2017, the Supreme Court gave their judgment in the case of R (on the application of MM (Lebanon)) and others  v SSHD [2017] UKSC 10.

The appellants in the case argued to the Court that the several aspects of the Immigration Rules were incompatible with Article 8 of their Human Rights – that being the right to respect for family and private life. In particular the appellants said that the rule requiring the visa applicant to prove a minimum income of £18,600, which ordinarily must be earned by the sponsoring partner in the UK, was unlawful. It was also argued that the Immigration Rules did not adequately protect the interests of children and so the Secretary of State for the Home Department was failing to meet their duties under section 55 of the Borders, Citizenship and Immigration Act 2009.

The Judgment

The Supreme Court held that the minimum income requirement, in principle, was lawful and justified. However, they made it clear that the Immigration Rules and the instructions to Caseworkers needed to be amended to allow consideration of alternative sources of funding and income and to take proper account of the best interests of children where appropriate.

The Aftermath

The immediate bitter-sweet outcome of this Judgment was that since 22 February 2017 any such settlement visa application which fell for refusal on the grounds of finances, or where children were involved, have been on hold pending reforms to the Immigration Rules. Although this creates a frustrating period of uncertainty for applicants with difficult cases, the silver lining is that their applications may end up being accepted once their case is reconsidered against the reformed rules.

As of late June 2017, there were over 5000 applications on hold.

The Changes

On 10 August 2017, the Immigration Rules were finally amended and the hold on applications previously falling for refusal has been lifted.

The new rules relating to settlement visas now set out the following principles:

  1. In exceptional cases, alternative sources of income such as third party support may be considered when assessing whether the financial requirement has been met.
  2. In exceptional cases where an application does not meet the requirements under the Immigration Rules but there are clear Human Rights considerations to take into account, the Caseworker should assess whether the application should be accepted on the grounds of Human Rights.
  3. When considering either of the above scenarios, the Caseworker must take into account, as a primary consideration, the best interests of any child who would be affected by a decision to refuse the application.

These changes at long last incorporate important Human Rights and child welfare considerations into the Immigration Rules. It will take time to determine whether these new rules will allow caseworkers to fully deal with difficult cases where these issues arise. It is likely that the rules will need to be tested before the tribunals and courts to determine if these rules now create a ‘complete framework’ for deciding these application as the Home Office suggests.

If you, or someone in your family, is hoping to make an application for a settlement visa, whether a first application or a renewal, we strongly recommend that you seek advice to ascertain whether you meet the requirements of the Immigration Rules. Application fees are non-refundable in the event of a refusal and fees are continuing to rise.

To discuss any of these matters further, please contact a member of our Immigration team to arrange a consultation or to discuss any specific matter in more detail.