Statement of changes to the Immigration Rules: HC290, 20 July 2017
After a long winded court battle that finally ended in the high court of Britain (see the article …here and here...), the outcry and sacrifices of thousands of families have finally yielded some results. Yesterday, through a new ‘Statement of Change in Immigration Rules,’ published on the GOV.UK website on the 20th of July 2017, the government laid bare the new changes which have been made in order to comply with the Supreme Court judgment in MM (Lebanon) & Others, which was handed down on the 22nd of February 2017 (see Article Here).
In Country Application -10/5 Years Human Rights Route under Paragraph EX.1
Luckily for those spouses within the UK but not meeting the income threshold, there is clause Paragaragh EX.1 of the Immigration Rules (see Article), which allows one to apply under human rights, provided that you can prove that you are the spouse or parent of a British national, under what is otherwise referred to as the “10 Year Partner /Parent Route” or, for Single parents, the “5 Year parent Route”.
In my role as a Human Rights Solicitor/UK Immigration Lawyer, I have witnessed that cases filed under this route with proper preparation would ordinarily succeed, especially where there is a child involved, due to the state’s obligation under the Best Interests of a Child.
Where no children were involved, applications have been less successful, as you are required to prove that it is not possible to relocate and be a family in the applicant’s country; this, unfortunately, has been very restrictive, with the court demanding that such obstacles should be more than the simple inconvenience of having to relocate to another country.
Out Of Country Application – Outside the rules – NO Paragraph Ex.1
Unfortunately, as the law stands now, the saving Ex.1 .i.e. 10/5 year Human Rights route, does not apply to an application made outside the UK.
Prior to February 2017, all persons applying for a visa from abroad without meeting the income threshold of £18,600 PA would have had their application refused. Although the Home Office has the discretion to consider granting a visa outside the rules where there are exceptional circumstances, the Home Office’s threshold of what constitutes exceptional circumstances is currently ridiculously rigid.
As confirmed in the Explanatory Memorandum accompanying the new statement of change, since February 2017 more than 5000 cases not meeting the income threshold have been held in abeyance, pending this review of the rules.
The Good News 🙂
A new paragraph 21A of Appendix FM-SE, inserted by these changes, states that where certain conditions are met the Entry Clearance Officer is under obligation to consider whether the minimum income requirement would be met if other sources of income, financial support or funds are taken into account. This would allow them, unlike under the current rules, to consider the following sources of income:
- credible guarantee of sustainable financial support from a third party ( e.g. from parents and in laws);
- credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; (e.g. the Spouse making the application has a clear job offer starting within 3 months of coming to UK) or
- any other credible and reliable source of income or funds available to the couple.
Although the new Paragraph 21A also makes detailed provisions for particular factors which the decision-maker will consider in determining the genuineness, credibility and reliability of other such sources of income, financial support or funds, this new clause is a major step towards avoiding the absurdity caused by the rigid current rules which fail to take into account a person’s individual case.
Condition to be met for new rules to apply
The specified circumstances to be met in order for this new clause to apply include:
One: the minimum income requirement is not otherwise met and,
Two: it is evident from the information provided by the applicant that there are exceptional circumstances which could render refusal of the application a breach of Article 8 because it could result in unjustifiably harsh consequences for the applicant, their partner or a child under the age of 18 years, who it is evident would be affected by a decision to refuse the application;
Put simply, this clause applies where one does not meet the income threshold for settlement visa (Spouse/Fiancee) but also they can put a Human Rights case across to the case worker and show that there will be a Breach of their spouse’s and/or children’s human rights, as protected under Article 8 of the European Convention on Human Rights. So my advice as a UK immigration Lawyer and a Human Rights Solicitor is to make sure you put across a very solid human rights case if you are hoping to make an application under this clause.
This is a massively positive change which, although not achieving the ultimate goal of bringing down the income threshold rules, does provides a halfway house solution that allows those who fall outside the income threshold to have their individual circumstances reviewed by the caseworker, taking full account of all the circumstances to ensure that they protect the rights of the applicant’s children and spouse.
So, why bother meeting the income threshold anymore?
Well, it is good news, but don’t be deceived into thinking that this new law means that meeting the income threshold has no benefit, as it does. Like the current 10 year Route, if your visa is granted under this new route you will have to wait for twice the time you would with a normal spouse visa to gain settled status in the UK (Indefinite Leave to Remain).
In other words, when you apply for a normal spouse visa, meeting all the rules, your visa is granted for 2.5 years; you would renew for one more term (so five years total) before applying for settlement.
However, under the 10 years route, your visa will be granted for 2.5 years but you will have to keep renewing your visa for three more terms before you can apply for settlement, in 10 years time.
This will, of course, not be such a big deal for those who had no chance to join their spouse anyway, until now, and in any case, one would have the chance to switch to a normal spouse visa once they had arrived in the UK and started working.
This new change is set to take effect in a couple of weeks, commencing on the 10th of August 2017. Mark the Day!!
We would expect that all the 5000 cases would be dealt with now, so, if you fall under this category, I advise you to urgently contact your UK immigration solicitor and ask them to submit further evidence and legal representations with solid human rights arguments as to why your case should be allowed under this new clause, even if you don’t meet the income threshold.This should off-course be done before the home office makes a decision on the said settlement application, otherwise, you may have to reapply again.
It would be especially important to make sure you include evidence of any other source of income that you may have that would not have been supplied with the initial application, as this was not considered previously under the rules.
As a UK Immigration lawyer, I am glad to note that the new laws seem to, at least in theory, have increased the humanity of the treatment of fellow British nationals wishing to invite their foreign spouse to this country. Too many have been forced to live their family life via Skype, with the resulting injustice being meted out to young British mothers and fathers, who are forced to raise their children as single parents, struggling to juggle child care and the search for the ever elusive job earning over £18,600.
A word of caution though, this is not necessarily a blank cheque to all those who don’t meet the income threshold, as the criteria for meeting is rigidly defined in the rule and thus potential applicant would be best advised to seek legal help from a UK Immigration Lawyer or Human Rights Solicitor in the careful preparation of their case, as the burden of proof remains on the applicant to demonstrate that a refusal would disproportionately interfere with their spouse/child’s human rights.
One should also note that while the Right to Family and Private life, as protected by Article 8 of ECHR, is an important right, such right is not absolute and it must be measured against the public interest, as put forward by the government.However, with this new rules one has a better fighting chance.
All said and done, this is a very positive move by the government and will give much hope, ultimately reuniting lots of desperate families whose only “sin” has been to fall in love with a non-EU national spouse, and not be fortunate to be rich enough to meet the high-income threshold.
If you have been affected by any UK immigration matter, please contact Solicitor Tito, a UK immigration and human rights solicitor, for a free initial consultation about your legal options. Call 07544 669131/01163800744 or on Skype: tito.mbariti.
Cross Border Legal Ltd is a UK Solicitor law firm regulated by the under the Solicitor Regulations Authority and is Headed by Mr. Tito Mbariti, a UK Immigration and Human Rights Solicitor who is a practising lawyer and member of the Law Society Of England and Wales