A new statement of changes to the UK Immigration Rules was presented to Parliament on 20 July 2017, to implement changes to the family Rules under Appendix FM following the Supreme Court judgment in MM (Lebanon) & ors v the Secretary for the Home Department . In particular, the statement of changes inserts new general provisions for meeting the Minimum Income Requirement (MIR) for these applications. MM (Lebanon) & ors challenged the compatibility of the requirement with the rights protected by the European Convention on Human Rights (ECHR), specifically Articles 8 (Private & Family Life), 12 (To Marry and Found a Family) and 14 (Prohibition of Discrimination). The case also contended that the Rules failed to incorporate the Secretary of State’s duty to have regard to the need to safeguard and promote the welfare of children when making decisions that affect them (s55 of the Borders, Citizenship and Immigration Act (BCIA) 2009).
Appendix FM – Minimum Income Requirement (MIR)
In July 2012, the new family route was created under Appendix FM. This scheme enables family members such as spouses, civil partners, unmarried partners, children and adult dependant relatives to join their settled or British family members (sponsors) in the UK.
Applicants need to meet eligibility, suitability, financial, English language and maintenance requirements under this route. The financial requirement requires applicants to show that they or their sponsor are earning a minimum gross annual salary package of £18,600. There is an additional £3,800 to be shown in support of the first dependant and an extra £2,400 for each additional child.
Sponsors or applicants must have been earning the required level for at least 6 months with the same employer or 12 months with different employers to qualify. Sponsors returning from overseas with their spouse will not only have to show that they earned the required amount during their employment overseas but they will also need to show they have a verifiable job offer in the UK, which will start within three months of their return.
Alternatively, if the salary minimum cannot be met, there is an option to rely on cash savings to make up the difference. If there is no income available, applicants are required to show minimum cash savings of £62,500 to satisfy the MIR (this figure increases if there are dependant children).
The reason for introducing the MIR
Before the MIR, the maintenance requirement for family members joining their sponsors in the UK was noticeably more subjective. Applicants were required to show that they had ‘adequate’ funds available to ensure they could be accommodated and maintained in the UK without recourse to public funds.
It transpired that there were problems with this approach, proving difficult for Entry Clearance Officers (ECO) and caseworkers to ensure assessment was applied consistently across each case. It also meant the threshold was not transparent, leaving applicants often unsure about where to pitch their evidence in support of their applications.
In July 2011, the Home Office issued a consultation paper proposing the new MIR. The Migration Advisory Committee (MAC) was asked to assess the minimum threshold level. There was a keenness to ensure an appropriate balance between public interest and an individual’s right to apply and reside in the UK. Ultimately, it was decided that ECO’s and caseworkers were not to be given the discretion or flexibility to assess the thresholds on a case-by-case basis. The annual figure of £18,600 was set as this was felt to be an income level at which a family would not require governmental financial support.
Facts of the MM (Lebanon) & ors case
MM was a 37-year-old Lebanese national with limited leave to remain in the UK as a refugee. He entered the UK in 2001. He lived with his sister EM who had discretionary leave to remain in the UK. EM has a 16-year-old son, AF, who looks to MM as a father figure. MM married a Syrian national in Lebanon. MM earned approximately £15,600 pa and was studying his PhD in the UK. His wife speaks fluent English, holds a BSc degree and works in Lebanon as a pharmacist.
In order to satisfy the financial element of the application for his wife to join him in the UK, there was additional third party support available to them and it was asserted that MM’s wife would be able to find skilled employment in the UK. MM chose not to make an entry clearance application for his wife on the basis that he knew it would fail under the MIR and did not see the point in spending money on the application fee. Instead, he joined a group of other applicants in challenging the MIR at judicial review.
These cases are examples of situations where the MIR may cause problems for families. This does mean that the courts have dealt with most of these cases on the basis of assumed facts. Blake J in the Administrative Court refused to condemn the MIR on the basis that claims of Article 8 violations should be considered within the context of an application. The Court of Appeal rejected the claim that the MIR was not rationally connected to its legitimate aims, stating that the MIR had been established on independent research and therefore it ‘struck a fair balance between the interests of the groups concerned and the community in general’.
The Supreme Court judgment
The court held that the MIR is acceptable in principle but that the Immigration Rules and Instructions unlawfully fail to emphatically take into account the section 55 duty under the BCIA 2009. The court also held that there was a need to amend the way the MIR was assessed and allow alternative income sources to be taken into account in order to ensure consistency with the ECHR duties.
The judgment declared that it was for the Secretary of State to establish the best way forward to achieve this goal.
Changes to the MIR
The Statement of Changes details the following changes to be made to the new general provisions in Appendix FM:
- Implement a new paragraph 21A of Appendix FM-SE, which details other permitted sources of income:
- Credible guarantee of sustainable financial support from a third party;
- Credible prospective earnings from the sustainable employment or self-employment of the applicant or their Sponsor; and
- Any other credible and reliable source of income or funds available to the couple.
- Paragraph 21A will detail particular factors which the decision-maker will consider in determining the genuineness, credibility and reliability of such other source of income, financial support or funds.
- Consideration to be given to the new paragraph 21A in specified circumstances:
- When the MIR is not otherwise met; and
- It is evident from the information provided that there exceptional circumstances, which could render refusal a breach of Article 8.
- In circumstances where the requirements cannot be met, decision-makers are to consider whether there are exceptional circumstances which would render refusal of the application a breach of Article 8.
- Decision-makers must have regard, as a primary consideration, to the best interests of any child affected by the decision, thereby giving obvious effect of Section 55 of BCIA 2009.
- Any leave granted under the new general provisions will place the applicant on a 10 year route to settlement, with scope to apply at another time to enter the 5 year route when they can meet the relevant requirements.
The Statement of Changes also made other minor technical changes to ensure that children are granted the same period of leave and subjected to the same conditions as their parent (applicant); ensuring any partner of a person in the UK with refugee leave or humanitarian protection does not qualify for settlement before their Sponsor does so and to clarify the English language requirement for further leave to remain applications.
Significance of Changes
The change is a momentous step for families applying under this visa category. This case highlighted the need to change the Immigration Rules and revise the guidance available for ECOs and caseworkers when assessing family applications. By making the ECHR and s55 of BCIA 2009 an explicit part of the Rules, a layer of protection has been added to protect applicants from suffering disproportionate decisions.
The proposed Paragraph 21A provides greater flexibility by highlighting suitable alternatives to be considered in scenarios where the MIR cannot be met, some may suggest a suitable example of a more common sense approach. This is a significant win and one that will no doubt be welcomed by many families, especially those that have been forced to live separately as a consequence of the inflexible approach to-date.