WHAT IS THE MINIMUM INCOME REQUIRED FOR SPOUSE / PARTNER VISA?
To sponsor a spouse or unmarried partner, the minimum income requirement will vary depending on when the initial application in the partner route is made.
For your clients submitting their first application for spouse / partner route after 11th April 2024, the minimum income requirement is subject to £29,000, regardless of whether children are applying alongside the partner.
However, if your client has already been on the route before 11 April 2024, the minimum income threshold remains under the previous rules at £18,600, increasing only if children are also included in the application.
Rules pertaining to the minimum income requirement may be found in Appendix FM SE
WHAT HAPPENS WHEN A SPOUSE OR PARTNER CANNOT MEET THE MINIMUM INCOME?
When the financial criteria in Appendix FM proves difficult to meet, look closer at your client’s unique situation for the following:
-Identify exceptional circumstances that would make strict adherence to the Rules unduly harsh.
-Examine whether refusal would unjustifiably interfere with their Article 8 rights to private and family life.
-Build a compelling case based on your client’s background to overcome the financial hurdles.
The Home Office has the authority to interpret and apply the concepts of “exceptional circumstances” and “unjustifiably harsh consequences” when assessing cases under Appendix FM – usually this is carried out in alignment with Article 8 of the European Convention on Human Rights (ECHR).
In each case, a careful balancing act must be performed, weighing your client’s right to maintain their family life in the UK against the Government’s responsibility to uphold immigration control by removing individuals who either do not have a right to enter or remain; – or are non-conducive to public good.
The ultimate decision rests on determining which interest carries more weight, your client’s desire to remain with their loved ones or the public’s need to ensure that immigration rules are properly enforced.
EXERCISING EXCEPTIONAL CIRCUMSTANCES FOR MINIMUM INCOME REQUIREMENT
If your clients are unable to satisfy the minimum income requirement, refer to paragraph GEN.3.1(1)(b) for guidance to explore potential exceptions that may allow this criterion to be waived.
This paragraph comes into effect when the couple’s income does not meet the minimum threshold or comes from sources that aren’t listed in the Rules.
It permits them to depend on other forms of financial support, which are detailed in paragraph 21(A)2 of Appendix FM-SE as follows:
(a) a credible guarantee of sustainable financial support to the applicant or their partner from a third party.
(b) credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or
(c) any other credible and reliable source of income or funds for the applicant or their partner, which is available to them at the date of application, or which will become available to them during the period of limited leave applied for.
In the context of the rule 21(A)2 (c), the term “credible” is used to describe the quality and trustworthiness of any additional sources of income or funds that the applicant or their partner may rely upon to meet the financial requirements.
When the rule states “any other credible and reliable source of income or funds,” it means that the Home Office will assess the believability and dependability of these alternative financial resources. The income or funds must not only be available to the applicant or their partner at the time of the application but also must be deemed genuine and likely to continue throughout the period of limited leave being sought.
To establish credibility, the applicant must provide strong evidence that demonstrates the legitimacy and sustainability of the income or funds. This evidence should clearly show that the financial resources are real, stable, and ongoing, rather than being speculative, temporary, or unreliable.
For example, if the applicant or their partner has a side business or freelance work that generates income, they would need to submit documentation such as contracts, invoices, and bank statements to verify the credibility and reliability of this income source. Similarly, if they have investments or savings, they must provide proof of ownership and value, as well as evidence that these funds are accessible and will remain available to support them during the relevant period.
Essentially, the term “credible” in this rule emphasises the importance of presenting convincing and verifiable evidence to satisfy the Home Office that any alternative sources of income or funds are genuine, dependable, and sufficient to meet the financial requirements of the visa application.
THE ROLE OF ARTICLE 8 FAMILY AND PRIVATE LIFE AS AN ADDED EXCEPTION TO MINIMUM INCOME REQUIREMENT.
To trigger Article 8 rights, you must establish that your client’s unique circumstances would make a refusal based solely on their spouse or partner’s inability to meet the minimum income requirement unduly harsh and disproportionate to their family and private life.
In the case of Begum [2021] UKUT 115 (IAC), the Upper Tribunal examined the language used in the maintenance requirements, highlighting the explicit emphasis on satisfying the Rules at the date of application.
The Tribunal also noted the focus on the period preceding the application date for this matter.
Based on the decision in Begum (employment income, Rules/Article 8) Bangladesh [2021] UKUT 115 (IAC), the key points made regarding the minimum income threshold criteria were:
-The financial requirements in E-ECP.3.1 of Appendix FM regarding income from employment relate to the 6 months prior to the date of application. There is no requirement to continue in that employment thereafter.
-If the Tribunal finds on appeal that an applicant meets the income requirement which the Home Office wrongly concluded they did not meet, the Home Office cannot rely on maintaining immigration control in the Article 8 proportionality assessment, in relation to that specific rule.
-There may be situations where, even if an applicant meets the rules on appeal, circumstances come to light allowing the Home Office to rely on some other rule to deny entry, such as where deception was used, or the applicant’s exclusion is required by public policy.
-But in general, where an applicant is found to meet the income requirements on appeal, which was the sole basis for refusal, it would be disproportionate under Article 8 to refuse them entry clearance.
-The income rules look at the past 6-12 months before the application date. They do not require forward-looking evidence of continuing to meet the threshold after that date. The judge found the rules do not have an “ambulatory” character in this regard.
It was held that meeting the income requirements is assessed based on the 6 months before the application, not afterwards, and if met, that should generally be determinative under Article 8 proportionality.
In the Begum case, the Upper Tribunal found that refusing entry clearance to the appellant would be an unjustified and excessive interference with her right to family life with her husband under Article 8 of the European Convention on Human Rights. It was held that the First-tier Tribunal made a legal error in its decision, so the Upper Tribunal overturned that decision, granting the appellant’s appeal, allowing her entry to the UK based on her Article 8 rights.
The case of Begum endorsed the principles set under TZ (Pakistan) & PG (India) of what constitutes as exceptional circumstances under Article 8 ECHR.
Based on the decision in TZ (Pakistan) & PG (India) v Secretary of State for the Home Department [2018] EWCA Civ 1109, the key points regarding exceptions to the minimum income requirement are:
-Where an applicant does not meet the minimum income requirement under the Immigration Rules, they can only succeed on Human Rights grounds outside the rules by showing exceptional circumstances that would result in unjustifiably harsh consequences if entry clearance was refused.
-The Immigration Rules and the ‘exceptional circumstances’ test outside the rules have been held to be lawful and compatible with Article 8 ECHR by the Supreme Court in Agyarko.
-There will generally need to be a very strong or compelling claim to outweigh the public interest in immigration control where the applicant’s immigration status was precarious when family life was established in the UK.
-When considering whether there are exceptional circumstances outside the rules, the tribunal should first assess, as a relevant factor, whether there would be insurmountable obstacles to family life continuing outside the UK, applying the test in the rules.
-The strength of the public policy in immigration control as reflected in the rules is a factor to be weighed against the strength of the Article 8 claim in deciding whether a positive obligation arises under Article 8 requiring leave to remain to be granted outside the rules.
However, the appeals of TZ (Paksitan) and PG(India) were both dismissed, as neither established exceptional circumstances outside the rules that outweighed the public interest in immigration control, given their precarious status when relationships were established.
Begum was an entry clearance matter, whereas TZ (Pakistan) and PG (India) concerned appeals against refusals of leave to remain. The common ground in these cases remained the appellants contention that the financial income requirements should be waived due to their exceptional circumstances as the Home Office’s refusal based on this criterion poses interference with their Article 8 rights.
WHERE THE MINIMUM INCOME REQUIREMENT AUTOMATICALLY DOES NOT APPLY:
It is important to remember that your client will be automatically exempted under the Rules from meeting the minimum income criteria if their spouse / partner are in receipt of any 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
- Police Injury Pension
- Bereavement benefits
CONCLUSION
It is noteworthy to examine how the courts applied the provisions relating to exceptional circumstances in each matter. The courts affirmed that mere economic or personal inconvenience is insufficient to trigger these exceptions. Only when exceptional circumstances are demonstrated will leave outside the rules be granted in cases where the minimum income threshold is not satisfied.
The key take from here is that the burden of proof will always be on the applicant of persuading the Home Office of their circumstances being worthy of qualifying of exception outside the Rules. Although the possibility for such exceptions exists, the courts will exercise great prudence when applying them.
This blog post merely scratches the surface of the valuable advice available for family visas. For a more comprehensive exploration of case law and practical guidance on navigating the current rules to build a strong case for your clients, join our experts, Mark Symes and Adam Pipe, in their live online course Winning Family and Private Life Cases & The Minimum Income Threshold on Wednesday, 19th June 2024.
For more information on the course and register, visit here
For enquiries, feel free to reach us on enquiries@hjt-training.co.uk or call us 07544164692
By Shareen Khan
Content Writer, HJT Training
