Home Office makes changes to Appendix FM Minimum Income Rule following MM case

October 16, 2017

The Home Office yesterday published changes to the Immigration Rules intended to give effect to the Minimum Income Rule findings made by the Supreme Court in MM (Lebanon) & Others v the Secretary for the Home Department [2017] UKSC 10. The changes are set out in Statement of Changes HC 290 and here we go through them in detail.

Headline changes

I have set out extracts of the Statement of Changes later in this blog post for now the main headline changes are:

  • To allow for consideration of other sources of income to meet the Minimum Income Rule

  • Where other sources of income are relied upon the applicant, partner and any children, will be granted leave on a 10-year route to settlement

  • To give Appendix FM the cover of being compliant with 55 of the Borders, Citizenship and Immigration Act 2009

  • To allow for recourse to public funds in certain circumstances

  • Clarifying the drafting of the English language requirement for further leave to remain as a partner or parent

  • Ensuring that a partner of a person here with refugee leave or humanitarian protection cannot qualify for settlement before that person has done so

The changes shall take effect from 10 August 2017 and will apply to all decisions made on or after that date no matter when the application was made.

MM (Lebanon) recap

The MM (Lebanon) judgement concerned applications which fail to meet the Minimum Income Rule for entry clearance or leave to remain as a partner or child under Appendix FM or which otherwise fall for refusal and involve a child under the age of 18 years.

The Supreme Court in MM (Lebanon) upheld in principle the Minimum Income Rule which requires an income of at least £18,600 for British citizens and others to sponsor a foreign spouse and higher where children are involved. However, the court also held that the rules and policies used by the Home Office to assess such cases would need to be amended to take proper account of the impact on children and other possible sources of income and support.

As of 30 June 2017, there were around 5,000 such applications on hold. The Home Office says that today’s Statement of Changes will allow them to decide those applications and future applications consistently with the findings of the Supreme Court, so expect an influx of immigration decisions from 10 August 2017.

Changes to the General Requirements of Appendix FM 

The General Requirements have been amended require the decision-maker to consider whether the Minimum Income Rule can be met from other sources of income, financial support or funds as set out in the new paragraph 21A of Appendix FM-SE.

It must now be evident from the information provided in the application that there are (using the infamous phrase) ‘exceptional circumstances’ which could render the refusal of the application a breach of Article 8 because it could result in unjustifiably harsh consequences for the applicant, the partner or a child under the age of 18 years old if the other sources of income are not considered.

The Home Office considers this to bring the test of proportionality under Article 8 into the Rules and the Rules, she says, are now a complete framework for her consideration of Article 8 grounds under Appendix FM.

Changes to the Specified Evidence

The other sources of income, financial support or funds which the decision maker will now consider includes:

  • 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 partner

  • or any other credible and reliable source of income or funds available to the couple

Paragraph 21A also makes for a ‘genuineness test’ with the onus on the applicant to demonstrate this for third party support or employment and self-employment.

In considering the genuineness, credibility and reliability of third party support the decision maker will consider whether evidence has been provided, and if provided, whether

  1. the third party is in a stable financial situation,

  2. that stability is sufficiently strong as to continue for the period of leave applied for, and

  3. there will be no changes to the applicant’s relationship with the third party that may impact on the future availably of the funds.

For employment and self-employment there must be evidence of its existence and that it can commence within three months of the applicant’s arrival or grant of leave to remain. Any documentary evidence relied upon must be on headed paper and include a contract of employment or, for self-employment, various types of contracts that can demonstrate the intention of providing goods or services. For those without leave and unable to enter contractual arrangements, draft contracts can be accepted.

Loans would not be accepted unless the source is a mortgage on a residential or commercial property in the UK or overseas and is owned by the applicant, the partner, or both, or by a third party.

The type of leave granted

Where the new provisions in GEN.3.1. or GEN.3.2. applies the applicant granted entry clearance or leave to remain as a partner or parent will now be on a 10-year route to settlement. This interpretation by the Home Office could be open to possible challange. The Supreme Court did not decide there was a seperate route to settlement but that alternative forms of income could be used to meet the Minimum Income Rule on the ‘regular’ route to settlement.

If, during that 10-year route, the applicant can subsequently meet the Minimum Income Rule she or he can apply later to enter the 5-year route to settlement.

Whichever route to settlement is granted, the children of the applicant or partner will be granted leave of the same duration and subject to the same conditions as their parent regardless of whether it is in their best interests to be granted a shorter duration of leave.