How to meet the minimum income financial requirement through a re-structured Appendix FM

The Statement of Changes in Immigration Rules HC 290, which came into effect on 10 August 2017, restructured Appendix FM such that it is now considered by the Secretary of State to provide a complete framework for  Article 8 decision-making in cases decided under it.

As currently drafted however the newly inserted  Exceptional Circumstances section makes rather  painful   reading.  It leaves smarting eyes and an overall glazed look as one attempts over and over again  to decipher the   true meaning of the inserted  paragraphs.  Without specific  regard to  the coded paragraphs relevant to the application types,  GEN 3.1 to  GEN 3.3  in some parts might as well be written in hieroglyphs.

 

A recent blog post sets outs answers to frequently asked questions in relation to the minimum income threshold and the 5year route to settlement:

 

https://ukimmigrationjusticewatch.com/2017/09/01/meeting-the-5year-route-to-settlement-as-a-partner-or-parent-your-frequently-asked-questions-answered/

 

 

Which application types  in Appendix FM  have to meet  the minimum income requirement

 

In summary, the following paragraphs of Appendix FM apply:

 

  • Paragraph E-ECP.3.1 or E-ECC.2.1- Applications for entry clearance as a Partner or as a Child of a person with limited leave as a Partner or Parent;

  • Paragraphs E-LTRP.3.1. or E-LTRC.2.1.- Application for leave to remain as a Partner  or as a Child of a person with limited leave as a Partner or Parent

 

Appendix FM restructured:

 

GEN.3.1. provides that where:

 

  • the financial requirement for entry clearance or limited leave to remain applications as a partner or child under Appendix FM applies, and is not met from the specified sources referred to in the relevant paragraph; and

  • it is evident from the information provided by the applicant that there are exceptional circumstances which could render refusal of entry clearance or leave to remain a breach of Article 8 of the European Convention on Human Rights, because such refusal could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child; then

the decision-maker must consider whether such financial requirement is met through taking into account the sources of income, financial support or funds set out in paragraph 21A(2) of Appendix FM-SE (subject to the considerations in sub-paragraphs (3) to (8) of that paragraph).

 

GEN.3.2. provides that:

 

Where an application for entry clearance or leave to enter or remain made under Appendix FM, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of  Appendix FM or Part 9 of the Rules, the decision-maker must consider whether the circumstances in paragraph GEN3.2 (2) apply.

 

Where paragraph GEN 3.2. (1)  applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.

 

GEN.3.3. provides that in considering an application for entry clearance or leave to enter or remain where paragraph GEN.3.1. or GEN.3.2. applies, the decision-maker must take into account, as a primary consideration, the best interests of any relevant child.

 

In paragraphs GEN.3.1. and GEN.3.2., and GEN 3.3, “relevant child” means a person who:

 

  • is under the age of 18 years at the date of the application; and

  • it is evident from the information provided by the applicant would be affected by a decision to refuse the application.

 

What are those other genuine, credible and reliable sources of income, financial support or funds?

 

Immigration Directorate Instruction Family Migration: Appendix FM Section 1.7 Appendix Armed Forces Financial Requirement August 2017, Appendix FM 1.7: financial requirement is the relevant Guidance with specific regard to Section 10.

 

Where Paragraph GEN.3.1.(1) of Appendix FM applies and where such exceptional circumstances exist, the decision-maker must go on to consider whether the minimum income requirement is met if other credible and reliable sources of income, financial support or funds available to the couple are taken into account. Those sources, and matters to which the decision maker should have regard when assessing their genuineness, credibility and reliability, are set out in paragraph 21A of Appendix FM-SE.  Appendix FM 1.7: financial requirement  is clear that the threshold of such exceptional circumstances (which must be met before other credible and reliable sources of income, financial support or funds can be taken into account) is a high one.

 

Where the decision-maker is satisfied, based on the information provided by the applicant, that there are exceptional circumstances which could render refusal of the application a breach of Article 8, the decision-maker should consider whether the applicant has provided evidence of ability to meet the minimum income requirement through other sources. If the applicant has not already done so, the decision-maker should contact the applicant (or their legal representative) in writing requesting that they provide information and evidence in writing of any other credible and reliable source(s) of income, financial support or funds available to the couple which enables the minimum income requirement to be met. Such sources can be in addition to, or in place of, the sources of income or funds on which the application initially relied. The decision-maker should request that the information be provided within 21 days of the date of the request.

 

The decision-maker should then consider any information and evidence provided by the applicant as to other sources of income, financial support or funds. Paragraph 21A of Appendix FM-SE sets out the types of source which can be taken into account (in addition to the specified sources referred to in Appendix FM, in, as appropriate, paragraph E-ECP.3.2).

 

Paragraph 21A of Appendix FM-SE also sets out objective criteria to which the decision-maker must have regard in assessing the genuineness, credibility and reliability of the other source(s) of income, financial support or funds on which the applicant relies.

 

The other source(s) of income, financial support or funds must enable the minimum income requirement to be met for entry clearance or leave to remain to be granted on this basis. The other relevant requirements of the Immigration Rules must also be met.

 

Permitted sources of income, financial support or funds:

 

The following sources of income, financial support or funds will be taken into account (in addition to those set out in, as appropriate, paragraph E-ECP.3.2., E-LTRP. 3.2., E-ECC.2.2. or E-LTRC.2.2. of Appendix FM):

 

  • a credible guarantee of sustainable financial support to the applicant or their partner from a third party;

  • credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or

  • any other credible and reliable source of income or funds for the applicant or their partner, which is available to them at the date of application or which will become available to them during the period of limited leave applied for.

The onus is on the applicant to satisfy the decision-maker of the genuineness, credibility and reliability of the source of income, financial support or funds relied upon, on the basis of the information and evidence provided.

 

The source of income, financial support or funds must not be a loan, unless evidence submitted with the application shows that:

 

  • the source is a mortgage on a residential or commercial property in the UK or overseas which at the date of application is owned by the applicant, their partner or both, or by the third party;

  • the mortgage is provided by a financial institution regulated by the appropriate regulatory body for the country in which that institution is operating; and

  • the mortgage payments are reasonably affordable by the person(s) responsible for them and are likely to remain so for the period of limited leave applied for.

 

Cash savings:

 

Any cash savings or any current financial investment or product relied upon by the applicant must at the date of application be in the name(s), and under the control, of the applicant, their partner or both.

 

Any cash savings relied upon by the applicant must enable the financial requirement in paragraph E-ECP.3.1.(b), E-LTRP.3.1.(b), E-ECC.2.1.(b) or E-LTRC.2.1.(b) of Appendix FM (as applicable) to be met, except that the criteria in sub-paragraph (8)(c) apply in place of the requirements in paragraphs 11 and 11A of this Appendix.

 

Third party support:

 

In determining the genuineness, credibility and reliability of the source of income, financial support or funds relied upon the decision-maker will take into account all the information and evidence provided, and will consider in respect of a guarantee of sustainable financial support from a third party:

 

  • whether the applicant has provided verifiable documentary evidence from the third party in question of their guarantee of financial support;

  • whether that evidence is signed, dated and witnessed or otherwise independently verified;

  • whether the third party has provided sufficient evidence of their general financial situation to enable the decision-maker to assess the likelihood of the guaranteed financial support continuing for the period of limited leave applied for;

  • whether the third party has provided verifiable documentary evidence of the nature, extent and duration of any current or previous financial support which they have provided to the applicant or their partner;

  • the extent to which this source of financial support is relied upon by the applicant to meet the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1., E-ECC.2.1. or E-LTRC.2.1. of Appendix FM (as applicable); and

  • the likelihood of a change in the third party’s financial situation or in their relationship with the applicant or the applicant’s partner during the period of limited leave applied for.

 

Prospective earnings from sustainable employment or self-employment:

 

In respect of prospective earnings from sustainable employment or self-employment of the applicant or their partner:

 

Whether, at the date of application, a specific offer of employment has been made, or a clear basis for self-employment exists. In either case, such employment or self-employment must be expected to commence within three months of the applicant’s arrival in the UK (if the applicant is applying for entry clearance) or within three months of the date of application (if the applicant is applying for leave to remain).

 

Whether the applicant has provided verifiable documentary evidence of the offer of employment or the basis for self-employment, and, if so, whether that evidence:

 

  • is on the headed notepaper of the company or other organisation offering the employment, or of a company or other organisation which has agreed to purchase the goods or services of the applicant or their partner as a self-employed person;

  • is signed, dated and witnessed or otherwise independently verified;

  • includes (in respect of an offer of employment) a signed or draft contract of employment;

  • includes (in respect of self-employment) any of a signed or draft contract for the provision of goods or services; a signed or draft partnership or franchise agreement; an application to the appropriate authority for a licence to trade; or details of the agreed or proposed purchase or rental of business premises;

 

Offer of employment in the UK:

 

Whether, in respect of an offer of employment in the UK, the applicant has provided verifiable documentary evidence:

 

  • of a relevant employment advertisement and employment application;

  • of the hours to be worked and the rate of gross pay, which that evidence must establish equals or exceeds the National Living Wage or the National Minimum Wage (as applicable, given the age of the person to be employed) and equals or exceeds the going rate for such work in that part of the UK; and

  • which enables the decision-maker to assess the reliability of the offer of employment, including in light of the total size of the workforce and the turnover (annual gross income or sales) of the relevant company or other organisation;

Whether the applicant has provided verifiable documentary evidence that at the date of application, the person to be employed or self-employed is in, or has recently been in, sustained employment or self-employment of the same or a similar type, of the same or a similar level of complexity and at the same or a similar level of responsibility.

 

Whether the applicant has provided verifiable documentary evidence that the person to be employed or self-employed has relevant professional, occupational or educational qualifications and that these are recognised in the UK.

 

Whether the applicant has provided verifiable documentary evidence that the person to be employed or self-employed has the level of English language skills such prospective employment or self-employment is likely to require.

 

The extent to which this source of income is relied upon by the applicant to meet the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1., E-ECC.2.1. or E-LTRC.2.1. of Appendix FM (as applicable).

 

Where an offer of employment is relied upon, and where the proposed employer is a family member or friend of the applicant or their partner, the likelihood of a relevant change in that relationship during the period of limited leave applied for.

 

Any other credible and reliable source of income or funds:

 

In respect of any other credible and reliable source of income or funds for the applicant or their partner:

 

  • whether the applicant has provided verifiable documentary evidence of the source;

  • whether that evidence is provided by a financial institution regulated by the appropriate regulatory body for the country in which that institution is operating, and is signed, dated and witnessed or otherwise independently verified;

  • where the income is or the funds are based on, or derived from, ownership of an asset, whether the applicant has provided verifiable documentary evidence of its current or previous ownership by the applicant, their partner or both;

  • whether the applicant has provided sufficient evidence to enable the decision-maker to assess the likelihood of the source of income or funds being available to them during the period of limited leave applied for; and

  • the extent to which this source of income or funds is relied upon by the applicant to meet the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1., E-ECC.2.1. or E-LTRC.2.1. of Appendix FM (as applicable).

Where an application under Appendix FM falls for refusal both for failure to meet the minimum income requirement, and for reasons unconnected to the minimum income requirement, the decision-maker must go on to consider whether paragraph GEN.3.2. of Appendix FM applies. Where paragraph GEN.3.2. does not apply, the decision-maker may refuse the application simply on the basis of the reasons for refusal which are not connected to the minimum income requirement.

 

What happens if an application is successful?

 

Where an applicant is successful on the above basis, entry clearance or limited leave to remain will be granted on the 10-year route to settlement under Appendix FM, with scope for the applicant to apply in-country to switch to start the 5-year route if they subsequently meet the requirements for this.

 

The new provisions enable Entry Clearance Officers to conduct full Article 8 considerations under Appendix FM, removing the need to refer those entry clearance cases that potentially raise exceptional circumstances (requiring leave to be granted on Article 8 grounds) to the Referred Casework Unit.

 

The key clarifications – meaning of exceptional circumstances and unjustifiably harsh consequences;

 

Relevant Home Office policy Guidance,  Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes clarifies as follows:

 

 

Exceptional circumstances

 

“Exceptional circumstances” means circumstances which could or would render refusal of entry clearance or limited leave to remain a breach of ECHR Article 8 (the right to respect for private and family life), because refusal could or would result in unjustifiably harsh consequences for the applicant, their partner or a relevant child, or would result in unjustifiably harsh consequences for another family member whose Article 8 rights it is evident from the application would be affected by a refusal.

 

“Exceptional” does not mean “unusual” or “unique”. Whilst all cases are to some extent unique, those unique factors do not 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 of the application could or would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under Article 8.

 

Exceptional circumstances on the basis of Article 8 can only be established where Article 8 is engaged. Article 8 is not usually engaged where the relationship relied upon is one between adult family members (other than partners), such as parents and their adult children, or adult siblings; or between wider family members, such as grandparents and grandchildren or aunts/uncles and nephews/nieces. There may be exceptions to this general rule in cases of unusual or exceptional dependency.

 

Unjustifiably harsh consequences

 

“Unjustifiably harsh consequences” are ones which involve a harsh outcome(s) for the applicant or their family which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others.

 

This involves consideration of whether refusal would be proportionate, taking into account all the facts of the case and, as a primary consideration, the best interests of any relevant child. The case-law makes clear that where the applicant does not meet the requirements of the Rules, and has established their family life in “precarious” circumstances (e.g. when they have limited leave to enter or remain in the UK), something “very compelling” is required to outweigh the public interest in refusal. Likewise, where family life is formed or exists with a person outside the UK who has no right to enter the UK and does not meet the requirements of the Rules for entry clearance, Article 8 does not require that they be granted entry, in the absence of such exceptional circumstances.

 

Examples of circumstances in which “unjustifiably harsh consequences” are considered not likely to arise include:

 

  • Lack of knowledge of a language spoken in the country in which the family would be required to continue or resume living

  • Being separated from extended family members

  • A material change in the quality of life for the family in the country in which they would be required to continue or resume living.

 

Examples of circumstances in which the refusal of the application might result in “unjustifiably harsh consequences” might include:

 

  • The applicant and their partner have a child in the UK with serious mental health or learning difficulties, and independent medical evidence establishes that good treatment and learning support are in place for the child here which would not be available in the country where the applicant resides.

  • The applicant’s partner has a genuine and subsisting parental relationship with a child in the UK of a former relationship, is taking an active role in the child’s upbringing, and the particular circumstances of the case mean that (taking into account the child’s best interests as a primary consideration) it would be unjustifiably harsh to expect the child to relocate overseas with the applicant’s partner, or for the applicant’s partner to do so without the child.

 

The threshold test is high:

 

Guidance, Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes  clarifies that Paragraph GEN.3.1. of Appendix FM sets out the threshold test to be met before it is necessary for the decision maker to consider such other sources. The decision maker will ask whether the 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 (taking into account, as a primary consideration, the best interests of that child). This is stated to  be  a high threshold.

 

The Guidance however states  that the  threshold to be met before it is necessary to consider other credible and reliable sources of income, financial support or funds under the minimum income requirement is not as high as the ultimate test, under paragraph GEN.3.2. of Appendix FM, of whether refusal of the application would be disproportionate under Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family, taking account, as a primary consideration, of the best interests of any relevant child. Where this test is met, entry clearance or leave to remain has to be granted in any event, regardless of whether the minimum income requirement (or indeed any other requirement of the Rules) is met.

 

The decision maker must consider all the circumstances relating to the applicant and their family, based on the information and evidence provided by the applicant.

 

In the entry clearance context, a key question in the assessment, taking into account as a primary consideration the best interests of any relevant child, will be: why can’t the UK partner go or remain overseas to continue or maintain their family life with the applicant? Alternatively, is it proportionate to expect the family to separate or for existing separation to be maintained?

 

If that approach:

 

  • Could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child – taking account of the particular circumstances of the case, the best interests of any relevant child as a primary consideration, and the due weight to be given to the public interest – then, where the minimum income requirement is not otherwise met, the applicant must be given an opportunity to show whether that requirement can be met through any other credible and reliable source(s) of income, financial support or funds available to the couple.

  • Would result in unjustifiably harsh consequences for the applicant or their family – taking account of the particular circumstances of the case, the best interests of any relevant child as a primary consideration and the due weight to be given to the public interest – then entry clearance or limited leave to remain must be granted on Article 8 grounds, where the requirements of the relevant Immigration Rules are not otherwise met.

 

Particular circumstances of each case to be taken into account:

 

The particular circumstances of each case must be considered in the light of all the information and evidence provided by the applicant. In determining whether there are exceptional circumstances which mean that refusal of the application could or would result in unjustifiably harsh consequences, the decision maker must consider all relevant factors raised by the applicant, and weigh them against the public interest under Article 8. In so doing, the best interests of any relevant child must be a primary consideration.

 

Such factors include the following:

 

  • The best interests of a relevant child

  • Ability to lawfully remain in or enter another country

  • The nature and extent of the family relationships involved

  • Where relevant, the circumstances giving rise to the applicant being separated from their partner and or/child in the UK

  • The likely impact on the applicant, their partner and/or child if the application is refused

  • Serious cultural barriers to relocation overseas

  • The impact of a mental or physical disability or of a serious illness which requires ongoing medical treatment.

  • The absence of governance or security in another country.

  • The immigration status of the applicant and their family members

  • Whether there are any factors which might increase the public interest in refusal

  • Cumulative factors should be considered.

 

Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes   is also clear that where the applicant’s partner is in the UK, the question of whether refusal of entry clearance could or would result in unjustifiably harsh consequences requires a very stringent assessment.

 

Considering the best interests of a relevant child:

 

The assessment of a child’s best interests requires a holistic consideration of all relevant factors in the particular case.

 

Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes  sets out detailed relevant  factors to be  take into account in the consideration of a child’s best interests.

 

The child’s best interests, taken into account as a primary consideration, must constitute substantive and compelling factors for entry clearance to be granted following consideration under paragraphs GEN.3.2. and GEN.3.3. of Appendix FM, where the requirements of the Immigration Rules are not otherwise met. This will be particularly so where the applicant and their partner have chosen to commence or continue their relationship in separate countries.

 

The decision maker must take into account any order made by the Family Court in the UK, but this is not determinative of the immigration decision. Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes  is clear that Family orders, such as contact, care, ward of the court and residence orders, do not limit the exercise of the Secretary of State’s powers with respect to immigration control. The decision maker does not have to grant leave because of such an order, but any order of this type is a relevant and important consideration to take into account in assessing the best interests of the child.

 

Conclusion

 

Some changes have been  made, however  it appears  from the relevant recently published Home Office Policy Guidance and Paragraph 21A of Appendix FM-SE, that it will be no easy nor simple matter to satisfy the requirements of  the restructured  Appendix.

 

Third party support is permitted, however the evidentiary requirements are quite burdensome  and  at times appear rather intrusive as they apply to the  third party- e.g the third party will be required to  provide sufficient evidence of their general financial situation to enable the decision-maker to assess the likelihood of the guaranteed financial support continuing for the period of limited leave applied for.

 

The litigation  challenge to the minimum income threshold  proceeded through the courts in the last few years culminating  in the Supreme  Court decision in MM (Lebanon) & Ors, R( on the applications of) v Secretary of State and another [2017] UKSC 10.  Whilst it remains to be seen  how  stringently or onerously the Secretary of State applies the new provisions in practice, it is not  inconceivable that further  litigation, this time focused on the new changes will proceed apace in the higher courts.  It is high  time the Upper Tribunal and Court of Appeal focused on some other new  provisions to  interpret and clarify apart from  the “ New Rules”  under  the deportation regime.

 

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