Several people have asked me the following questions
“Do you think there will be changes to the rules[Family Immigration Rules on financial Threshold] following the court case. If so, what will happen?”
Well this is my honest opinion. Simple answer is YES! and NO!
Yes! the secretary of state will have to responds, they already have by saying you can still apply even if you don’t meet the finical threshold (see home office website) if the secretary of state failed to consider this courts recommendation then they risk having most of they refusals overturned on appeal on the bases of Article 8 European Conventions on Human Rights .
However, given the political climate and the rise of such parties like UKIP, It is highly unlikely that they would change the rules as recommended but would possible issue some guideline to their case worker to use more the discretion allowed within the current rules where one does not meet the financial threshold.
Please note that even before this decision, the Home Office had the ability to use their discretion for those who don’t meet the financial requirement under exception and compassionate circumstance e.g. to avoid breach Article 8.Under
3.1.5. Exceptional circumstances or compassionate factors
Where the applicant does not meet the requirements of the Immigration Rules, the Entry Clearance Officer must consider whether there are exceptional circumstances or compassionate factors which mean the Home Office should consider granting entry clearance outside the rules. …
Entry Clearance Officer must consider whether there are any exceptional circumstances which might make a refusal of entry clearance a breach of Article 8 of the ECHR (the right to respect for family life) because refusal would result in unjustifiably harsh consequences for the applicant or their family. …
The Entry Clearance Officer must also consider whether there are any compassionate factors – that is compelling compassionate reasons – which might justify a grant of entry clearance outside the rules. … (UKBA partners Guidance for caseworker -May 2013)
Unfortunately, many people, maybe due lack of proper legal advice, did not use this clause or challenge the refusal on this ground.
It would be useful to see them utilise their discretion more to allow those spouse who couldn’t otherwise meet the rules to be given some time to meet the rules by been granted leave outside the rules first (10 year family route) allowing them to switch to normal 5 years spouse route later on when they qualify.
so to sum up, Yes! I think they will be some changes but no not nearly as much as we would hope.
PLEASE note this is my personal opinion and you are welcome to comment and suggest otherwise .