Applications for permission to enter or remain in the UK, as a spouse of a British citizen or settled person

The Home Office has published changes to the Immigration Rules, which put into effect the Supreme Court’s recent judgment about the minimum income rule[1]:

  • The Secretary of State for the Home Department (SSHD) will consider other sources of income to meet the minimum income rule
  • Where the applicant or spouse relies upon other sources of income, the applicant, partner and any children will be granted leave on a 10 year route to settlement
  • There is a new provision in Appendix FM which states that the Home Office must consider the rights of children in the application
  • Recourse to public funds will be allowed in certain circumstances
  • The English language requirement for further leave to remain as a partner or parent has been redrafted to make the wording clearer
  • The partner of a person in the UK with refugee leave or humanitarian protection cannot qualify for settlement before that person has received settled status

The new rules will take effect from 10 August 2017.

What is the minimum income rule?

The minimum income rule requires an income of at least £18,600 for British citizens or other eligible sponsor (and higher where children are part of the application). Where this financial requirement is met, together with other requirements of Appendix FM, the applicant and dependants are granted leave to enter or remain which leads to settlement after completing five years of residence.

Previously, no other income was considered – no third party support and not even income of the foreign spouse (even in cases where the foreign spouse had significantly high income or a job offer in the UK where income would either meet the financial requirement or be higher).

What do the new rules mean?

Under the new rules, the decision maker can consider genuine and sustainable financial support from:

  • a third party
  • a genuine job offer for the foreign spouse
  • the prospect of self-employment for the foreign spouse or the sponsor in the UK
  • any other reliable source of income or funds that are available at the time of the application

The only downside of the new changes is the type of leave which will be granted when applicant is relying on an alternative source of income (i.e. not the sponsor’s income of £18,600). Where the new provisions apply, the applicant will be put on a 10 year route to settlement instead of the usual five year route where the financial requirement is met.

Should the applicant or the sponsor subsequently meet the income of £18,600, they can switch to the five year route to settlement.

Summary

Although the requirements for this type of application now seem easier, the wording of the Immigration Rules is in no way simple. Applicants must be very careful in their preparation of evidence for this application.