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Have Changes to The Spouse/Civil Partnership Minimum Income Threshold Made A Difference?

November 2018 - Immigration. Legal Developments by A Y & J Solicitors.

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The plight of those denied a UK Spouse/CivilPartnership Visa or a Spouse/Civil Partnership Visa extension continues to feature in the headlines. In August 2018, the Guardian reported on one young woman, driven to attempt suicide after her fiancé, an Albanian national, was not permitted to enter the country.  The Home Office ruled Paige Smith, a British Citizen, did not meet the £18,600 income threshold.  It later transpired the Home Office lost a crucial payslip proving that Ms Smith met the criteria, a document the department had been sent four times by a Solicitor and Ms Smith’s MP.  The appeal Judge took ten minutes to rule the Visa should have been approved; however, the couple still had to wait two months for the Home Office to declare it would not appeal the decision.

According to the Guardian, Ms Smith is one of over 1,000 people on the Reuniting Families Facebook page who can testify to the issues tens of thousands of British nationals are experiencing when trying to bring their non-EU spouses and dependants into the UK.  Obtaining a Spouse Visa is becoming increasingly difficult, a legacy of Prime Minister Theresa May’s ‘hostile environment’.

The requirements for a non-EEA national to obtain a UK Spouse Visa are as follows:

 

·        Your spouse/civil partner must be a British Citizen or settled in the UK

 

·        You must have met each other and be legally married or in Civil parnership

 

·        You intend to live with your sponsor and have adequate accommodation

 

·        Your sponsor meets the financial requirements of£18,600 per year (plus an additional £3,800 for the first child and £2,400 for each additional child)

 

·        You meet the English language requirements

 

The initial visa is granted for 33 months, after which you may apply for an extension of 30 months.  These requirements must be evidenced again when you apply for a UK Spouse / Civil Partnership Visa extension.  In addition, to be granted an extension, you will also need to show you have been living together in a relationship of marriage or civil partnership.   After five years, you may be able to apply for Indefinite Leave to Remain.

 

Meeting the income threshold

 

Spouse/CivilPartnership Visas are often refused due to the sponsoring partner not meetingthe £18,600 income threshold.  Less than 40% of UK citizens working full or part-time earn this amount.  The Supreme Court in MM (Lebanon) and others v Secretary of State for the Home Department [2017]UKSC 10 led to amendments being made to the Appendix FM Minimum Income Rule.  These changes provided:

 

·        Decision-makers could consider other sources of income in certain circumstances

 

·        An art. 8 assessment should be made if, in not meetingthe provisions, “unjustifiably harsh consequences” would result

 

·        Appendix FM would be compliant with section 55 of the Borders, Citizenship and Immigration Act 2009

 

·        Public funds can be used in certain cases

 

According to the Guidance on Appendix FM, the Home Office will move to consider alternative sources of income in a Spouse/CivilPartnership Visas where:

 

“the decision maker must consider whether refusal of the application could breach ECHR Article 8 because it could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child….The decision maker must take into account, as a primary consideration, the best interests of any relevant child”.

 

Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 1776.

 

This recently decided case concerned two appeals where the applicants had failed to meet the minimum income requirement. 

 

The first appeal related to a Pakistani national who applied to enter the UK to join his wife, a British Citizen.  The wife was unemployed for 12 months but found a job with a local body four months before her husband applied for leave to enter. The Entry Clearance Officer (ECO) refused entry on the basis that the sponsor’s income did not meet the minimum income requirement of £18,600 in the 12 months preceding the application.  The First-Tier Tribunal upheld the appeal on the grounds that uprooting the wife and her children and forcing them to live in Pakistan would be a disproportionate interference of their human rights.  The second appeal concerned a Jamaican national and her son.  The ECO denied entry because her sponsor did not provide proper evidence that he could meet the minimum income requirement.  TheTribunal ruled that the sponsor was able to adequately provide for his spouse and child after submitting additional evidence,therefore the refusal would be disproportionate on Human Rights grounds.  This decision was upheld by the UpperTribunal.

 

However,the Court of Appeal ruled the Upper Tribunal had been wrong to overturn the refusals by both ECOs as they had relied on Justice Blake’s decision in MM (Lebanon) [2014] EWCA Civ 985 which had been reversed.

 

Crucially, Lord Justice McCombe and Lord Justice Lindblom expressed surprise that the individuals seeking entry clearance had chosen the appeal route.  If the parties had simply re-submitted their applications when they could meet the minimum income threshold, they would have saved themselves time, money,and the stress of going through the appeals process. 

 

In summary

 

From an immigration lawyer’s perspective, it would appear as if the Home Office is still making decisions on Spouse/Civil Partnership Visas as if the amendments to Appendix FM had not occurred.  Therefore, applicants should be cautious before committing to an appeal, and take experienced advice as to whether this is the most effective approach.  It is possible that a fresh application will reunite a couple faster and more cost-effectively.

 

A Y & JSolicitors: Immigration Lawyers based in London.

 

They are expert in all aspect of the UK immigration including Dependent Visa, Indefinite Leave to Remain, Unmarried Partner Visa, British Citizenship, UK Ancestry Visa, and Sole Representative Visa.