December 27, 2019

Spouse visa financial requirement for spouses returning to the UK

Spouse visa financial requirement is always aa tricky issue in a spouse visa application.

For a British or settled individual who is relocating to the UK with their non-British or settled partner after spending time overseas, the financial requirement for a spouse visa can be trickier than for couples where the sponsor is already in the UK. In this blog post, we take a look at the specific rules concerning the financial requirement for couples preparing to return to the UK together. In a subsequent post we will take a more detailed look at how the requirement can be met through the Sponsor’s employment or self-employment.

Employment

If a UK spouse visa applicant (the partner who is not British or settled) has been working outside the UK for a non-UK company, their income from this work cannot usually be used to meet the financial requirement (while this is the general rule, it should be noted that the case may be different if the applicant has been working for a UK-based company overseas).

Income from a Sponsor (the British or settled partner), on the other hand, can be relied upon to meet the requirement even when it comes from work undertaken outside of the UK for a non-UK company. However, there are some additional requirements which the Sponsor must meet in order for a couple who wish to return to the UK to rely on this overseas income.

The requirements for a Sponsor returning to the UK are different from those for a Sponsor who is already in the UK and working. For a Sponsor already in the UK, the rules will only look backwards, generally to the monthly income during the 6-month period leading up to the date of application, provided that they are still employed on the date of application. However, for couples who are overseas and looking to come back to the UK, and who are relying on the Sponsor’s overseas employment in order to meet the financial requirement, the rules are both backward-looking and forward-looking.

We will cover how the financial requirement can be met through employment for couples returning to the UK in a subsequent post.

Cash savings

An amount of cash savings which has been held by the Applicant, the Sponsor or both jointly for at least the 6-month period prior to the date of application, and which is under the Applicant/Sponsor’s control, can count towards the financial requirement. This amount must be above the minimum level of £16,000. For a partner without dependent children, if relying only on cash savings, the required amount to be held in savings is £62,500 (although this amount will be calculated differently if cash savings are being combined with any other type of income, or if a partner has dependent children).

For a Sponsor who is in paid employment at the date of application who is returning to the UK, current cash savings can be used to make up any deficit in either the backward-looking requirement (which looks to income in the 6 months leading up to the application) or the forward-looking requirement (which looks to the employment to which the Sponsor is returning in the UK).

Selling assets

If money is held in a way which means it cannot be immediately withdrawn, such as in an investment account, stocks, shares, bonds or trust funds, it will not meet the requirements to be considered as cash savings. However, if a couple choose to liquidate their investments into cash savings in order to meet the financial requirement, then the 6-month period during which the cash savings must be held does not have to start from scratch at the moment of liquidation. The time period during which the cash savings were held as investments can be counted towards the 6-month period, as long as they were always in the ownership and under the control of the Applicant/Sponsor.

This principle also applies for the sale of property. If the Applicant/Sponsor owned property and has sold it prior to the application to produce cash savings, the time during which the property was held in ownership can count towards the 6-month period required.

The property sold can be in the UK or overseas. If a returning couple sell a property that they had owned overseas, the proceeds from this sale can go to meet the financial requirement and the previous period of ownership can count towards the 6-month time period.

Property rental income

A couple returning to the UK from overseas may also rely on income from property rental to meet the financial requirement. This will be based on the income received from the property during the 12 months leading up to the date of application.

As of the date of the application, the property must be held in the name of the Applicant, the Sponsor, or both jointly. Income from properties overseas, as well as in the UK, can be counted.

Property rental income can only be counted if it comes from a property that is not being used as the couple’s main residence. The property must also not become the couple’s main residence if the application is granted and they return to live in the UK.

As an exception to this rule, a couple returning to the UK are able to rely on income from a property that will become their main residence in the UK if it counts towards the backward-looking part of the requirement only. It can be combined with the Sponsor’s overseas employment in the months leading up to the application, in order to meet that part of the requirement. However, it cannot be combined with the forward-looking part of the requirement, which looks at income from the Sponsor’s job offer in the UK. This is because the property in the UK will no longer be a source of income once the couple return to live there as their main residence.

Pension income

The annual income from any State, occupational or private pension which the Applicant or Sponsor receives may be counted towards the financial requirement. It can be counted as long as the pension has become a source of income at least 28 days prior to the application.

The State pension can be from the UK or from any foreign State, so couples returning to the UK are able to rely on the Applicant’s income from an overseas pension authority to meet the financial requirement.

Maintenance grant or stipend

The Applicant or Sponsor’s income in the form of an academic maintenance grant or stipend can be counted towards the financial requirement. Where this is paid on a tax-free basis, the amount of the gross equivalent can be counted towards the financial requirement. The rules do not stipulate that the maintenance grant or stipend should be from a UK-based institution.

Step 1: looking back to income already earned

The rules are different depending on whether the Sponsor is still in employment on the date of application, and if so, whether the Sponsor has been with their current employer for 6 months or more.

Currently in employment, and has been with the current employer for 6 months or more

Salaried employment

If the Sponsor is in salaried employment overseas at the date of application, and has been employed by the same employer for at least 6 months prior to the date of application, then the salary that they have been receiving can be relied on, even though this was earned outside the UK. The Sponsor must have been paid throughout the period of 6 months prior to the date of application at a level of gross annual salary which equals or exceeds the level relied upon in the application. For a partner without dependent children, if relying only on income from employment, this amounts to a minimum salary of £18,600 annually (although this amount will be calculated differently if employment income is being combined with any other type of income, or if a partner has dependent children).

Non-salaried employment

Income from employment overseas does not have to be in the form of a salary. For non-salaried employment, the average annual income can be calculated by simply doubling the total gross income earned during the 6-month period leading up to the date of application. For a partner without dependent children, if relying only on income from employment, this would be a minimum income of £18,600 annually (or £9,300 during the 6 months leading up to the date of application).

Self-employment

If the Sponsor is self-employed, they can still rely on work undertaken overseas to meet the financial requirement, as long as the couple meet the requirement in paragraph E-LTRP.1.10 of Appendix FM (that they intend to live together permanently in the UK).

In terms of calculating the annual income, a self-employed Sponsor has two options. They can use their total income from the last full financial year to meet the requirement. Alternatively, if they wish, they may use a yearly average of the income received in the last two full financial years.

The relevant financial year will reflect the requirements of the taxation system of the country where the self-employment took place (rather than the UK financial year, which runs from 06 April to 05 April the following year).

This income can be combined with other sources of income (such as salaried or non-salaried employment, non-employment income or pension income), but all these sources of income must fall within the same financial year as the self-employed income, and must still be a source of income at the time of the application.

Not in employment at the date of application, or has not been with current employer for 6 months or more

If the Sponsor is not in employment, or has not been employed with their current employer for 6 months or more, their income during the 12 months leading up to the date of application can be considered. During this 12-month period, the Sponsor must have received the minimum amount necessary to meet the financial requirement. This income can be through any kind of employment: salaried, non-salaried or self-employment.

For all types of employment overseas, income in a foreign currency can be converted to pounds sterling (£) using the closing spot exchange rate which appears on www.oanda.com on the date of application.

Step 2: looking forward to future earnings in the UK

Regardless of the Sponsor’s employment status at the date of application, they will also have to meet a second requirement involving their future in the UK. They must have a confirmed offer of salaried or non-salaried employment to which they will return in the UK. The employment must start within 3 months of their return. If the employment is salaried, it must have a gross annual starting salary sufficient to meet the level of financial requirement relied on. If the employment is non-salaried, the employer must provide evidence that the Sponsor will have a gross annual income sufficient to meet the level of financial requirement relied on. This will be based on the amount of pay and the standard or core hours to be worked by the Sponsor. A letter from the employer must be provided, confirming the job offer, salary and starting date of the role (which must be within 3 months of the Sponsor’s return to the UK), as well as the signed contract of employment.

A Sponsor who is self-employed overseas, and who is relying on their self-employment to meet the backward-looking part of the requirement, can rely on continuing their self-employment in the UK in order to meet the forward-looking part of the requirement. They must provide evidence that their self-employment is ongoing and will be continuing in the UK. This can be in the form of an application to the appropriate authority for a licence to trade, details of the purchase or rental of business premises, a signed employment contract or a signed contract for the provision of services, or a partnership of franchise agreement signed by the relevant parties to the agreement.

December 13, 2019

Are You Keeping The Home Office Up To Date With Your Current Circumstances?

The Home Office require a migrant’s circumstances to be kept up-to-date at all times, regardless of whether the migrant holds a valid immigration status or they have an application that is under consideration. If a migrant’s circumstances are not kept-up-to-date, it could have a detrimental effect on the migrant’s UK immigration status.

What qualifies as ‘circumstances’?

For any migrant in the UK with a Biometric Residence Permit or an application which has been submitted to the Home Office but not yet decided, the Home Office advise that a report should be made if there are any changes to the following:

personal details;
contact details;
criminal convictions; and
separation from their partner or if any of their children stop living with them permanently.

Do you have a Police Registration certificate?

All of the above circumstances must be reported immediately if you are required to register with the police. The police may be unable to update any changes immediately and so an appointment should be made to do this as soon as possible.

Risk of curtailment

Curtailment occurs when the Home Office withdraw your right to remain in the UK. Many migrants underestimate the importance of updating the Home Office of changes to their circumstances whilst residing in the UK. A situation may arise where a migrant has moved address, not informed the Home Office and, for whatever reason, their leave is curtailed but they do not receive the curtailment notice as it was sent to an old address. This could lead to a migrant remaining in the UK illegally.

What do I do if I receive a driving penalty whilst my application is outstanding with the Home Office?

As with any change in circumstances, the Home Office should be updated so that their records are accurate and up-to-date. In the case of a driving offence, caution, conviction or other offence, it is imperative that the Home Office are advised as soon as these are received, even if the decision on an application already submitted to the Home Office has not yet been made. For example, if you have submitted an application to the Home Office and three months after submission (but before a decision is made) you commit an offence, you must inform the Home Office immediately. This type of update could have a negative impact on a decision if reported, but it could also have an effect on the migrant’s immigration status if it is not reported because the Home Office will likely find out and, as a result, will suspect the migrant of deception for not reporting it.

Deception forms part of the general grounds for refusal and so could cause an application to be refused or, if already decided, could result in the migrant’s leave being curtailed. Curtailment could result in the migrant being required to leave the UK.

Are you an employer and hold a sponsor licence?

Where a company sponsors a migrant worker and becomes aware of a change in the circumstances of a migrant in their employ, a report may need to be submitted to the Home Office, depending on the details, using the Sponsor Management System.

Companies holding sponsor licences have a number of duties and responsibilities and it is important that these are complied with. If you are concerned about any migrants you are sponsoring, please contact us to discuss the specific circumstances and we can advise accordingly.

How do I update my details?

How a migrant reports a change in circumstances depends on the nature of those changed circumstances and this may vary from one case to the next.

December 4, 2019

Supreme Court unanimously rules detention of asylum seekers pending removal was unlawful

supreme court

R (Hemmati and others) v Secretary of State for the Home Department [2019] UKSC 56

In a significant public law decision, the Supreme Court dismissed the Secretary of State’s appeal and held that the policy governing detention pending removal fails to comply with the Dublin III Regulation as it lacks adequate certainty and predictability.

The respondents were five individuals who had travelled to the UK illegally and made claims of asylum, having entered via at least one other member state of the European Union in which they had already claimed asylum. Relying on the procedure set out in the Dublin III Regulation (Parliament and Council Regulation (EU) No 604/2013 of 26 June 2013) (“Dublin III”), the Secretary of State requested those states to take responsibility for examining the asylum claims. Each such state agreed.

The respondents were then detained pending their removal pursuant to paragraph 16(2) of the Immigration Act 1971. Paragraph 1(3) of Schedule 2 to the 1971 Act provides that in exercising powers of detention, immigration officers must act in accordance with such instructions as may be given to them by the Secretary of State.

The policy in relation to detention to effect removal is set out in Chapter 55 of the Enforcement Instructions and Guidance (23 October 2015) (“the EIG”). The power to detain is also subject to the well-known Hardial Singh principles. The Supreme Court in R (Nouazli) v Secretary of State for the Home Department [2016] UKSC 16; [2016] 1 WLR 1565 (at §75) recently confirmed that the courts will monitor the compliance of immigration detention with those principles, which in summary require that: (i) there is an intention to deport the individual and that the power to detain is used for that purpose; (ii) the period of detention is reasonable; (iii) the power to detain is not sought if it becomes apparent that deportation cannot be effected within a reasonable period; (iv) reasonable diligence and expedition is exercised to effect removal.

The first issue for the Supreme Court was whether the respondent’s detention met the requirements of Dublin III. Article 28 of Dublin III permits detention where there is a “significant risk of absconding”, “risk of absconding” being defined in article 2(n) as the existence of reasons in an individual case, based on objective criteria defined by law, to believe that the person subject to a transfer procedure might abscond.

To answer this question, Lord Kitchin’s judgment considers in detail the decision of the Court of Justice of the European Union (“the CJEU”) in Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie v Al Chodor (Case C-528/15) [2017] 4 WLR 125 (“Al Chodor”).

The CJEU held that articles 28(2) and 2(n) of Dublin III required Member States to ensure that detention was subject to strict safeguards of “legal basis, clarity, predictability, accessibility and protection against arbitrariness”. As such, Member States are required to establish, “in a binding provision of general application”, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond (§§37-38; 53; Al Chodor §§40 – 46). The necessary safeguards would then be in place in so far as the wording of the provision sets out the “limits of the flexibility of [the] authorities in the assessment of the circumstances of each specific case” in a manner which is “binding and known in advance.”

However, the CJEU did not go as far as the Opinion of Advocate General Saugmandsgaard Øe of 10 November 2016 EU:C:2016:865; [2017] 3 CMLR 24, who expressed the view that the concept of “law” required the criteria to be laid down in legislation (Opinion, §§42-45). This would have taken the EU standard further than the meaning of the concept of “law” in the ECHR case law (§§31-32; 39).

Before the Supreme Court, the Secretary of State accepted that Chapter 55 of the EIG was not legislation, but it was contended that it includes rules which decision-makers are obliged to follow as a result of settled case law, and that it constitutes a clear statement of the circumstances in which the statutory criteria will be exercised, which are objective and publicly accessible, and if necessary, subject to the interpretation of the courts.

The Supreme Court disagreed, holding that the relevant provisions of Chapter 55 contained

no more than general guidance as to how the power to detain is to be exercised and does not constitute a set of objective criteria against which the risk of absconding is to be assessed.

Nor, the Court held, did they set out the “limits of the flexibility of the authorities in the assessment of the particular circumstances of each case in a manner which is binding and known in advance” (§58).

The Hardial Singh principles require the power to detain to be exercised reasonably and for the prescribed purpose of facilitating deportation, but they

do not constitute objective criteria on the basis of which an assessment may be made as to the likelihood that a person who is subject to a transfer procedure may abscond (§§59 – 61).

The Supreme Court concluded that persons subject to a Dublin III procedure could not know in advance which criteria would be used for the basis of an assessment of whether they are likely to abscond, and that they would not be able to identify the limits of the flexibility of the relevant authorities in carrying out their evaluation (§65). It followed that Chapter 55 of the EIG could not satisfy the requirements of articles 28(2) and 2(n) of the Dublin III Regulation.

Though not strictly necessary, the next stage of the Court’s analysis considered whether Chapter 55 of the EIG constitutes a binding provision of general application which amounts to a defining “law” within the meaning of article 2(n).

Notwithstanding that the policy created significant legal effect and was enforceable before the courts, the Court held that a provision can only amount to a “law” within the meaning of article 2(n) if it has the “necessary quality of certainty”; something that Chapter 55 lacked. The Court held that “to ignore the need for certainty would be impermissibly to remove the word “law” from its context” (§72).

The second issue for the Supreme Court was whether damages were payable. The Court held that they were: as Chapter 55 did not comply with articles 28(2) and 2(n) of the Regulation, in the case of each of the respondents the decision to detain lay outside the scope of any legitimate exercise of the discretion conferred by Schedule 2 to the 1971 Act and the ingredients of the tort of wrongful imprisonment were present (§§89-105). The Court also rejected the Secretary of State’s submission that the respondents should only be entitled to nominal damages (§§106-112).

Comment

The judgment will mark a significant development in asylum law in practice, but it is also notable for its exposition of deeper issues of constitutional and public law theory. Bringing academic debate to life, Lord Kitchin questioned whether any policy could ever amount to a “law” within the meaning of article 2(n).

The respondents’ arguments, drawing on constitutional law theory and the decision in Al Chodor, were rehearsed by the Court but were ultimately left for a case where it was necessary to decide the issue. However, this passage makes for fascinating reading (see §§75-79). It is also significant that the Court’s judgment criticised Chapter 55 of the EIG in relatively severe and general terms, such that it is likely to have significant repercussions for the future of asylum detention regulation.

Secondly, Lord Kitchin was clear that

there is no reason to believe that the impact of loss of liberty is likely to be affected by whether lack of legal authority for the detention is the consequence of a failure to comply with European Union or domestic legislation, and in my judgement the source of the lack of legal authority does not justify treating those who have been wrongfully detained differently from one another (§91).

Rejecting the Secretary of State’s arguments, the Supreme Court was confident in awarding damages for unlawful detention under UK common law, such that the principles of EU law as articulated in Francovich v Italian Republic (Joined Cases C-6/90 and C-9/90) [1995] ICR 722 Brasserie du Pecheur SA v Germany; R v Transport Secretary; Ex p Factortame Ltd No 4 (Joined Cases C-46/93 and C-48/93) [1996] QB 404 did not constrain the claim by the respondents for false imprisonment.

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