Appendix FM Immigration Rules Change is somewhat confusing even for the legal practitioners and the Home Office case working unit. In light of The Supreme Court judgment in MM (Lebanon) & Others v SSHD [2017] UKSC 10, which required that, in circumstances where refusal of the application could otherwise breach ECHR Article 8, Home Office must take into account other credible and reliable sources of earnings or finance available to a couple in considering whether they meet the minimum income requirement under Appendix FM.
The test is applied whereby Appendix FM Immigration Rules change give “direct effect” to the Secretary of State’s existing duties under section 55 of the Borders, Citizenship and Immigration Act 2009 and Article 3 of UN Convention on the Rights of the Child, to take into account, as a primary consideration, the best interests of a child affected by an immigration decision.
The Supreme Court judgment in Agyarko & Ikuga v SSHD [2017] UKSC 11, which upheld the Secretary of State’s approach in applying a test of “unjustifiably harsh consequences” for the applicant or their family in deciding (in a case falling for refusal under the Immigration Rules) whether exceptional circumstances existed such that refusal of leave would constitute a breach of Article 8.
The Secretary of State’s wish to streamline decision-making, particularly in relation to entry clearance, in cases which may raise exceptional circumstances requiring leave to be granted on Article 8 grounds: the Statement of Changes in Immigration Rules HC 290, which came into effect on 10 August 2017, restructured Appendix FM such that it now provides a complete framework for our Article 8 decision-making in cases decided under it.
Appendix FM, supported by Appendix FM-SE (specified evidence) and Part 9 (for the relevant general grounds for refusal), now incorporates, in accordance with the criteria the Supreme Court has upheld, all aspects of our Article 8 decision-making in family cases falling to be decided under it. In particular, under HC 290, implemented on 10 August 2017 for all applications decided from that date.
Those other credible and reliable sources of income, financial support or funds (such as a guarantee of third party support or the migrant partner’s prospective earnings) must enable the minimum income requirement to be met, in order for entry clearance or limited leave to remain to be granted on this basis. Where it is met, this will be granted under the 10-year partner route to ILR under Appendix FM, with scope for the applicant to apply in-country to switch to start the 5-year route if they subsequently meet the requirements for this.
Paragraph 21A of Appendix FM-SE, inserted by HC 290, sets out objective criteria by which decision makers will assess the genuineness, credibility and reliability of other sources of income, financial support or funds. Each case will be considered on its merits, in the light of all the information and evidence provided by the applicant. But, generally speaking, the more these criteria are met, the more likely it is that the decision maker will be satisfied as to the genuineness, credibility and reliability of the other source(s) of income, financial support or funds and count it towards meeting the minimum income requirement.
Those Appendix FM cases which would previously have fallen for consideration outside the Immigration Rules on Article 8 grounds – subject to the test of whether there were exceptional circumstances which meant refusal would result in unjustifiably harsh consequences for the applicant or their family – will now fall to be considered, against the same test, under Appendix FM: that is, within the Immigration Rules. As before, in conducting this assessment the decision maker must take into account, as a primary consideration, the best interests of any relevant child affected by the decision. This provision is made by paragraphs GEN.3.2. and GEN.3.3. of Appendix FM, inserted by HC 290.
Simply meeting the requirements under the ruling does not mean, that the Home Office need to grant leave to enter for the partner.
In respect of an entry clearance application, the decision maker should consider the ability of the members of the family unit (both the applicant and others) to lawfully remain in or enter another country. The onus is on the applicant to show that it is not feasible for the family to remain in or enter another country. A mere wish, desire or preference to live in the UK is not sufficient.
Some day-to-day responsibility (or decision-making) for the child’s welfare may be shared with others, for example, relatives or friends, for practical reasons, as long as the applicant is ultimately responsible for the welfare of the child. The decision maker is not considering whether the applicant (or anyone else) has day-to-day responsibility for the child, but whether the applicant has continuing sole control and direction of the child’s upbringing, including making all the important decisions in the child’s life. If not, then they do not have sole parental responsibility for the child. The decision maker must carefully consider each application on a case-by-case basis. The burden of proof is on the applicant to provide satisfactory evidence. In some instances it may be appropriate to interview an applicant to establish whether they have sole responsibility for the child, or to contact the other parent (with the consent of the applicant) in order to confirm they have no parental responsibility.
Decision makers will note that the fact that refusal may, for example, result in the continued separation of family members does not of itself constitute exceptional circumstances or unjustifiably harsh consequences, particularly where the family have chosen to commence or continue their relationships in separate countries.
The impact of a mental or physical disability or of a serious illness which requires ongoing medical treatment. Living in or moving to another country may involve a period of hardship for any person as they adjust to their new surroundings, whether or not they have a mental or physical disability or a serious illness which requires ongoing medical treatment. As such, in the absence of a third country alternative, it could amount to an obstacle to family life continuing or resuming overseas, such that refusal of entry clearance would result in unjustifiably harsh consequences.
Whether there are any factors which might increase the public interest in refusal, for example where the applicant has failed to meet the suitability requirements because of criminality, deception or issues around their character or conduct; or where the applicant does not speak English or is not financially independent meaning that they are less likely to be able to integrate and more likely to be a burden on the taxpayer.
An applicant granted entry clearance or leave to remain on this basis will be on the 10- year partner route to settlement (Indefinite Leave to Remain). That means that the person will not have to meet the minimum income requirement again, in order to complete that route. However, where they are subsequently in a position to meet that requirement, using the usual sources specified in Appendix FM, they can apply in-country to switch to start the 5-year partner route.
If you require further advice, or help on the policy change, speak to us on 0207 237 3388 or email us at info@icslegal.com. You can also complete our free assessment, by clicking here.
