The Supreme Court’s ruling is not all gloom for families
In July 2012, the Home Office introduced the notoriously restrictive assessment of the financial requirements for partners or spouses of British citizens or persons settled here.
The appendix attached to the Immigration Rules requires the British or settled spouse to have a minimum income of £18,600 per annum, or significant savings. Support from third parties (e.g. family members) or potential employment offers for the foreign national spouse were not relevant and were not considered during the application process.
The very recent decision of the Supreme Court on this issue, and discussion about family immigration rules have been widely covered in the news and social media extensively over the past few weeks. The media comprehensively covered the Secretary of State winning the case and the judgement that the rules are lawful: The Guardian wrote that the Supreme Court backs minimum income rule for non-European spouses, and the BBC reported that income rules for foreign spouses were upheld.
What has not been prominently broadcast is that the case was actually a victory for the applicants. The Home Office had been directed to prepare a report for the Supreme Court on its amendments to its guidance on assessing financial support for families.
Although the Court held that the Rules themselves are not unlawful, their application in individual cases can be unlawful.
The interpretation of the Supreme Court judgment allows spouses to submit applications for entry clearance or applications for leave to remain in the UK, even where the minimum income is not strictly met. This isn’t to say that the income requirement should be ignored, nor applications where the partner in the UK has no income or savings at all are being encouraged. Each application will be looked at on its own merits.
The decision makers are expected to consider:
- The impact of their decisions on the family, as in many cases the rights of the children have been ignored)
- Projection of the family’s financial future, where a potential income or a job offer made to the foreign spouse should be taken into account
Not every offer of employment will necessarily be deemed genuine and satisfactory. Entry clearance officers will look at the applicant’s background, their education and potential to gain employment and earn the money on which they would be relying within the application.
Where the British or settled partner is not meeting the income requirement (and where there are circumstances which make the application of the strict Rules and Appendix requirements governing financial requirement unlawful and breaching the applicant’s rights to family life), the applicant may be able to rely on support from family members topping up the difference. Geography will also be considered: i.e. where the family will live in the UK is important in assessing the financial situation as cost of living changes depending on location.
The Immigration Rules are not the ‘be all and end all’ when assessing circumstances and human rights in family applications. They are only the beginning.
The Immigration Rules are not law, they are the administrative policy of the Home Office and decision makers, as well as judiciary must bear this in mind when considering family applications. Applications should be approached on an individual basis.
Advice to applicants
It is your responsibility to prove your case. Applications require detailed evidence to convince the decision maker that the applicant has the potential to live in the UK without any reliance on public funds, as this is what the Home Office considers to be in the best interest of the public in the UK.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.