HOME OFFICE ISSUES NEW GUIDANCE ON MINIMUM INCOME REQUIREMENT FOLLOWING MM(LEBANON)
The UK immigration system is going on through constant and dramatic changes in 2017.
Following the Supreme Court’s decision in MM(Lebanon) & Ors v SSHD [2017] UKSC 10, some six months after judgment was first handed down,the Home Office has finally issued guidance
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.
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 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.
EU citizens living here are vital – Home office letter, September 2017
Dear Brandon
You may have heard about events taking place today in Westminster where EU citizens gathered to express concerns about their rights after the UK leaves the EU.
We know that EU citizens living in the UK want to look to their futures with as much certainty as possible. That is why the UK government is committed to reaching agreement on citizens’ rights as soon as possible through our negotiations with the EU. The Prime Minister has said from the very outset that protecting the rights of EU citizens in the UK and UK nationals in the EU is a top priority.
Writing for The Times’ Red Box today, Immigration Minister Brandon Lewis said that he has personally spoken to many European Union citizens concerned about their future in the UK. He writes:
“I would like to once again send the message that the government recognises how vital you are to this country, we are committed to protecting your rights and we are doing everything possible to reach a final agreement on this issue with the EU at the earliest possible stage.”
You can read the full article on GOV.UK.
The next round of negotiations in Brussels is scheduled for later this month. Citizens’ rights will once again form one of the main areas for discussion and we will write and update you again at the end of that round.
Meanwhile, here is another pointer to the web page status of EU citizens in the UK: what you need to know which has further details about the government’s proposal to protect the position of EU citizens in the UK – and UK nationals in the EU – which was published in June. You can also see this list for all relevant areas being discussed between the EU and UK and what stage of agreement we have reached.
You do not need to take any further action at this point.
Thank you,
Home Office Communications
EU Exit Negotiations Update from the Home office
Dear Brandon ,
The latest round of negotiations between the UK and EU concluded yesterday in Brussels.
Progress was made on several fronts – including on the rights of EU citizens living in the UK and UK nationals in the EU.
On healthcare, for example, we agreed to protect the rights to reciprocal healthcare, including European Health Insurance Cards (EHICs), for EU citizens in the UK and UK nationals in the EU who are present on the day of exit.
Both sides also agreed that the rights of cross border workers should be protected.
On economic rights, we have confirmed the right of EU citizens to set up and manage a business in the UK, and the same applies to British citizens in their Member State of residence.
These points of agreement are good news but the discussions also highlighted where more work is needed.
This includes several areas where the UK wants to go further than the EU, such as posted workers (raised in the July round) and the mutual recognition of professional qualifications. The UK will also continue to seek clarification on how the EU’s stance on various issues would work in practice and be implemented within the EU27.
The next round of negotiations in September will build on progress to date with a view to reaching a future agreement on citizens’ rights. This table provides a comparison of the EU-UK positions on citizens’ rights and where outstanding issues remain.
As Secretary of State for Exiting the EU David Davis said yesterday, the UK government remains absolutely committed during the negotiation process to delivering the best outcome for the people of the EU and the UK.
We also recognise that EU citizens in the UK and UK citizens living in the EU would like certainty about future arrangements as soon as possible.
Please visit Status of EU citizens in the UK: what you need to know for further details about the government’s proposal to protect the position of EU citizens in the UK – and UK nationals in the EU – published on 26 June. It contained these commitments:
• EU citizens with settled status will continue be treated as if they were UK nationals for education, healthcare, benefits, pensions and social housing after we leave the EU.
• No EU citizen currently in the UK lawfully will be asked to leave at the point we leave the EU. EU citizens will have at least two years to regularise their status.
• The process to apply for settled status will be streamlined and user friendly, including for those who already hold a permanent residence document under current free movement rules. We expect the system to be up and running in 2018.
As the negotiations in Brussels progress, our advice to EU citizens remains the same: you do not need to apply for documentation confirming your status now.
The rights of EU citizens have not changed. Last week, around 100 EU citizens received letters in error stating they were liable for removal from the UK. For the avoidance of doubt, these letters were sent in error and will have caused understandable distress. The Department has apologised to the individuals affected and they are being reassured that they should disregard the letters. The Home Office statement is here.
We will continue to keep you up to date on the negotiations and wider citizens’ rights issues over the coming months.
Thank you,
Home Office Communications
Date: 1 September 2017
