The Home Office has finally issued guidance following the Supreme Court’s decision in MM(Lebanon) & Ors v SSHD  UKSC 10, some six months after judgment was first handed down.
MM(Lebanon) was the lead case on the lawfulness of the minimum income requirement of £18,600, which was brought in for partner and child applications, following the introduction of Appendix FM on 9 July 2012. After some four years, the case was heard by the Supreme Court in February 2016, with judgment handed down a year later on 22 February 2017. The Supreme Court found that the minimum income requirement was not unlawful per se, but that the Secretary of State for the Home Department (“SSHD”) were required to properly take into account the best interests of children involved in such applications and other possible sources of income and financial support.
Shortly before the summer recess, on 20 July, the immigration minister announced a new statement of changes (HC 290), the purpose of which was to give effect to the decision in MM(Lebanon). The statement inserted amendments to Immigration Rules (“the Rules”): the General Requirements (in particular GEN.3.1 – 3.3) and a new Paragraph 21A to Appendix FM. However no guidance was issued on how the SSHD would apply the new requirements until 10 August 2017. This guidance applies to all decisions made on or after 10 August.
The guidance reflects a two-stage approach. First, the decision maker must consider whether the applicant meets the Rules without consideration of exceptional circumstances under GEN.3.2. If they do, then leave is to be granted. If they do not, then leave will be considered under the 10 year route.
The decision maker will then only go on to consider other credible and reliable sources of financial support or funds if refusal of the application could result in unjustifiably harsh consequences for the applicant, partner or relevant child as set out under GEN.3.1. In effect, Appendix FM now brings under the auspices of the Rules the SSHD’s full Article 8 considerations.
In essence Paragraph 21A sets out the “objective criteria by which decision makers will assess the genuineness, credibility and reliability of other sources of income, financial support or funds”. The guidance goes on to state that the more these criteria are met, the more likely the decision maker will be satisfied as to the genuineness, credibility and reliability of other sources of income, financial support or funds and thus can count it towards meeting the minimum income requirement.
As such, once a decision maker considers that in refusing the application, this could result in unjustifiably harsh consequences, then if not already done so the decision maker should afford the applicant or their legal representative 21 days to provided further evidence of credible and reliable sources of income or financial support available.
Such sources set out in the guidance include:
- a guarantee of third party support;
- prospective earnings of the migrant’s partner; or
- any other credible and reliable source of income or funds available to the couple.
Secondly, if an applicant does not otherwise meet the relevant Rules, the decision maker must go on to consider under GEN.3.2 and GEN.3.3 whether there are exceptional circumstances which would render refusal a breach of Article 8, right to family and private life, because it would result in unjustifiably harsh consequences to either the applicant, partner or any relevant children involved. The best interest of any relevant child must also be treated as a primary consideration. Should the decision maker consider that such a refusal would result in unjustifiably harsh consequences, entry clearance or limited leave to remain must be granted.
It appears that should an application made under Appendix FM, be subject to consideration under GEN.3.1. – 3.3 and Paragraph 21A, then the applicant will be put on the 10 year parent/parent route to settlement (as applicable) with scope to apply in-country to switch and start the 5-year route should they subsequently meet the minimum income requirement of £18,600.
This is a summary of the recently published guidance: Appendix FM 1.0 Family Life (as a Partner or Parent): 5-Year Routes August 2017. For further advice regarding your specific circumstances please contact Gherson.