Article by Ameera Nosheen and Asya Chaudhry both Solicitors at Fountain Solicitors
We have set out the main headline changes :
To allow for consideration of other sources of income to meet the Minimum Income Rule for spouses of £18600
* 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.
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 July 2017, there were around 6,000 applications on hold. The Home Office says that the 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.
The Home Office will be using the ‘exceptional circumstances’ test 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 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.
Where the new provisions 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.
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.
If you wish to find out more about the changes please book an appointment to see either Ameera Nosheen, Asya Chaudhry, Ramzan Sharif or Abdul Zeb, all Solicitors at Fountain Solicitors.
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