Minimum Income Requirement

Minimum Income Requirement

The Home Office has updated the minimum income requirement, within the Immigration Rules, following the recent findings of the Supreme Court. We highlight the key takeaways from the Court’s findings and updated Immigration Rules.

Background

British citizens and settled nationals in the United Kingdom (UK) who wish to sponsor their non-European Economic Area (EEA) spouse must meet strict minimum income requirements (MIR), as set out in Appendix FM Family Members Section E-ECP Eligibility. Under the MIR, a sponsor must evidence a minimum annual income of £18,600 from employment, or hold the equivalent in cash savings. That is, savings of £62,500 in total.

The MIR also applies to those wishing to sponsor a non-EEA unmarried partner or fiancé/ fiancée. And the amount of income required increases depending on the number of overseas children to be included in the application. For instance, the sponsor must earn an additional £3,800 for the first child and an additional £2,400 for each subsequent child added to the application.

The Supreme Court, the final court of appeal for civil cases in the United Kingdom (UK), recently considered the scope of the MIR in the case MM (Lebanon) and others v the Secretary of State for the Home Department [2017] UKSC 10 (MM (Lebanon)).

The Supreme Court’s findings

In MM (Lebanon), the Supreme Court unanimously (and unfortunately) supported the minimum income requirement in principle, agreeing with the Home Office, that it was not only necessary for the UK’s aim of maintaining an effective immigration control, but that the requirement was compatible with the right to family life enshrined under Article 8 of the European Convention on Human Rights (ECHR), much to the disappointment of many families and campaigners.

However, the Supreme Court acknowledged that the minimum income requirement was ‘particularly harsh’. In paragraph 80 of the judgement, the Justices stated:

There can be no doubt that the MIR has caused, and will continue to cause, significant hardship to many thousands of couples who have good reasons for wanting to make their lives together in this country, and to their children.

They ruled that the Immigration Rules, and the Immigration Directorate Instruction issued to caseworkers were defective and unlawful due to their narrow application and little weight given to the interests of children.

The Home Office has since incorporated the findings of the Supreme Court in the Statement of Changes in Immigration Rules HC290, which came into effect on 10 August 2017 and Appendix FM to HC 395.

Key Takeaways

The key takeaways from the judgement of MM (Lebanon) and the Home Office Statement of Changes are as follows:

  1. Children’s rights must be safeguarded

Under section 55 of the Borders, Citizenship and Immigration Act 2009, the Secretary of State has a duty to safeguard and promote the welfare of children when making decisions which affect them. The Justices felt that the Immigration Rules and the guidance issued to caseworkers and entry clearance officers failed to do so, making them unlawful.

The Home Office has since revised the Immigration Rules and guidance to ensure that decision makers treat the best interests of the child as a primary consideration.

  1. Alternative funding

The Supreme Court assessed whether the overseas partner’s prospective income should be taken into account when determining whether the MIR had been met. They ruled in favour of the Secretary of State on this point, stating that to do so would prove cumbersome to verify for decision makers.

Nevertheless, the Court expressed concern that the sources of funding, taken into account by decision makers when assessing whether the MIR had been met, were so restrictive as to be harmful. This was particularly significant where the refusal of the application could breach Article 8 ECHR.

The Home Office has now amended the Immigration Rules and guidance so as to place a less restrictive approach to alternative funding.

Conclusion

The Supreme Court, in their judgement of MM (Lebanon) recognised that the minimum income requirement (MIR) was harsh and somewhat unfair to a number of individuals, couples and families. They stopped short of ruling that the MIR was unlawful overall but found that elements of the Immigration Rules and guidance were.

The Supreme Court ruled that the Home Office must give more consideration to the interests of the child in such cases and gave findings on the alternative sources of funding.

The Home Office has duly complied. However, time will tell whether the Home Office has truly heeded the concerns expressed, and findings of, the Supreme Court.

 

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration help to individuals and families.

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Spouse visa – what are the requirements for a spouse visa

Thomas Chase Immigration - UK Spouse Visa

‘How do I apply for a spouse visa?’ ‘What are the requirements for a spouse visa? Common questions. You may be a British national living in the UK and would like your overseas spouse to join you. It should be a simple enough process. It is not. In an attempt to demystify the spouse visa applications, I have put together an outline of the process for applying for a spouse visa, the documents required and some general guidance to bear in mind.

Background

A spouse visa is appropriate when you are already in the UK and you would like your overseas spouse or civil partner to join you in the UK for over 6 months. Overseas national refers to your partner being a national of a country outside of the European Economic Area (EEA) and who is living abroad.

As part of the immigration process, you will need to sponsor your partner’s application to join you as a dependant and you will need to fall within one of the following:

  • Be a British citizen
  • Have settlement or indefinite leave to remain in the UK
  • Have asylum or humanitarian protection in the UK

Much of this information may apply to unmarried partners also though for the purposes of this article, the focus will be on spouses and married partners.

Application

As the sponsor you are supporting the application. Your partner will need to complete and submit the application online in their country of nationality or residence. The only exception to the online process is where your partner resides in or is from North Korea in which case, they will need to download and complete a paper application form.

The application form can be saved and returned to, allowing you to assist with the preparation of the application form or to review the application to ensure that all the information provided is correct.

The application type normally causes confusion. As you are a British citizen or settled and living in the UK, your partner will need to apply for a ‘Family of a Settled Person’ visa.

If you have children, your partner should their details within their application form and also complete separate online applications for each child.

Key requirements:

Genuine Relationship

Your partner must be over 18 and your relationship must be genuine and that you intend to live together as a family in the UK. When submitting the application to UK Visas and Immigration (UKVI), they will wish to see evidence that the marriage or civil partnership is legal and that the relationship is one that exists and has not an ‘arranged marriage’ or has been entered into to circumvent immigration laws.

Earnings

One of the most onerous requirements is the need for you to meet the financial requirements for your partner to successfully apply to join you in the UK. This means that you need to show that you earn above a certain threshold.

The salary threshold currently stands at:

  • £18,600 per annum – partner only
  • £22,400 per annum – partner and first child
  • £24,800 per annum – partner and 2 children
  • £27,200 per annum – partner and 3 children
  • £2,400 for each additional child

So as an example, if you are sponsoring your wife and 3 children to join you in the UK as your dependants, you will need to show the following savings or earnings:

  • £27,200 per annum – partner and 3 children

Total = £27,200

The financial requirement is usually evidenced via your income but can be a combination of:

  • Income from employment or self-employment – if you’re in the UK with permission to work
  • A pension
  • Maternity, paternity, adoption or sick pay
  • Other income such as from rent or shares
  • Cash savings – you’ll need at least £16,000, and the savings must have been in your name for 6 months or more

You will not need to meet the financial requirement if you have one or more of the following benefits:

  • Disability Living Allowance
  • Severe Disablement Allowance
  • Industrial Injuries Disablement Benefit
  • Attendance Allowance
  • Personal Independence Payment
  • Armed Forces Independence Payment or Guaranteed Income Payment under the Armed Forces Compensation Scheme
  • Constant Attendance Allowance, Mobility Supplement or War Disablement Pension under the War Pensions Scheme
  • bereavement benefits

The above requirements do not apply if you have either humanitarian protection or refugee status and are subject to change.

You will also need to complete a Financial Requirement Form or Appendix 2 to further evidence that you meet the financial requirements.

The evidential flexibility for meeting the financial requirements is set out in paragraph D of Appendix FM-SE.

Accommodation

As part of the application process, you must show that you and your partner (and any children) will have adequate accommodation in the UK. This is to prevent individuals later seeking public assistance.

English language

Your partner will need to show that they have a knowledge of the English Language when they apply to join you in the UK.

If your partner is from a national of a majority English language, their language skills will be implied. Those countries are:

  • Antigua and Barbuda
  • Australia
  • the Bahamas
  • Barbados
  • Belize
  • Canada
  • Dominica
  • Grenada
  • Guyana
  • Jamaica
  • New Zealand
  • St Kitts and Nevis
  • St Lucia
  • St Vincent and the Grenadines
  • Trinidad and Tobago
  • US

Otherwise, English language can be evidenced by way of:

  • An academic qualification that both:
    • was taught or researched in English
    • is recognised by the body, UK NARIC, as being equivalent to a bachelor’s or master’s degree or PhD

A partner may be exempted from evidencing a knowledge of the English language where:

  • They are 65 years of age and older
  • Unable to do so due to a long term physical or mental condition
  • There are exceptional circumstances preventing them from meeting the requirements

UKVI will expect to see evidence if any of the above applies.

Tuberculosis Testing

As part of the immigration process, your partner may need to provide evidence of Tuberculosis (TB) screening if they are a resident of a particular country. Further information on TB screening can be found here.

It is advisable for your partner to book a test well in advance of the UKVI appointment as TB screening appointments in some countries can be subject to long waiting times.

Once your partner has been screened and found to be clear of infectious TB, they will be given a certificate which must be submitted as part of their application.

If you have children traveling as part of the application, they will need to be seen by the clinician who will decide if they need a chest x-ray. For any children under 11, a chest x-ray is rare. Once cleared, their certificates will also need to be included in their applications.

Children under 11 will not normally have a chest x-ray.

The TB certificate is normally valid for 6 months so this needs to be factored into your overall applications timescales.

Sponsorship Form

You will need to confirm your sponsorship of your partner’s (and child or children’s) application by way of an undertaking. This is done by completing a Sponsorship Form

By signing the Sponsorship Form, you are confirming that you will be responsible for your partner’s (and child’s or children’s) maintenance, accommodation and care, without relying on public funds:

  • For at least 5 years, if they are applying to settle
  • Throughout their stay in the UK

Documents

The key documents to be submitted with the application will depend on your and your partner’s circumstances. Each person’s circumstances are different and there have been instances when I have advised clients to submit additional documents or made detailed representations to UKVI in order to make the application process as smooth as possible.

Whilst this is not an exhaustive list, some of the key documents to be submitted are:

  • Printed application form
  • Your current passport or valid travel identification document
  • Any previous or expired passports
  • Your partner’s passport sized photographs
  • Evidence of your identity and status in the UK
  • Evidence of marital status
  • Evidence that you and your partner intend on living together in the UK and of your relationship
  • Proof of adequate accommodation in the UK
  • Proof that you can meet the financial requirement/ maintenance requirements
  • Financial Requirements Form
  • Your partners proof of their knowledge of the English language
  • Your partner’s valid TB test certificate – see above
  • Sponsorship Form

If your child or children are applying to travel to the UK with your partner, the following should also be included, though this is not an exhaustive list:

  • Your child’s current passport or valid travel identification document
  • Your child’s previous or expired passports
  • Your child’s passport sized photographs
  • Your child’s valid TB test certificate

How long are processing times?

Processing times are at the mercy of UKVI and depends on a number of factors. For that reason, it is advisable to leave nothing to chance so as to prevent delay to your application.

On average, however, spouse applications can take up to 12 weeks to be decided. The latest  UKVI processing timescales can be found here.

Application fees

As of 2016/2017, application fees for your dependant to join you in the UK stand at £1,195. Fee increases apply as of 6 April 2017.

In addition, your partner will need to pay an Immigration Health Surcharge towards the National Health Service of £200 per year.

How long will the visa be issued for?

Spouse visas are issued for 33 months. Before the end of the visa, your partner will need to apply to extend their visa for a further 2 years and 6 months. The application will be made UKVI from within the UK so there is no need for your partner to leave the UK and make the application from abroad.

Can my partner work in the work?

Once the visa has been issued, your partner may work, take up employment and study in the UK.

Can my partner apply for settlement?

Your spouse may apply for indefinite leave to remain in the UK or settlement once they have resided in the UK for 5 years continuously.

My suggestion is that as soon as your spouse enters the UK as your dependant, they you both take a long term view to your situation and collate documents over the next 5 years to with a view to submitting an application to first extend their leave in the UK and later to seek settlement.

Conclusion

Spouse visas allow an overseas partner living abroad to join their British or settled spouse or civil partner in the UK. Once obtained, the overseas partner may travel to the UK, live beyond 5 years, work and study. Yet, the fact that the sponsoring spouse of civil partner might be British or settled in the UK does not necessarily mean that the immigration process will be a straightforward one. There are a number of strict requirements that could lead to a delay or a refusal of a spouse visa application if those requirements are not met.  With this in mind, this article has sought to explain the spouse visa immigration process and clarify the requirements to be met by UK sponsors and their overseas partners.

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If you would like further guidance or assistance with an application for a UK spouse visa, contact us at Thomas Chase Immigration to arrange a consultation. Or learn more about immigration from our blogs.

You may also like: Q&A: UK spouse visas and Disability Living Allowance.