The Supreme Court judgment in MM (Lebanon) & Others confirm the lawfulness under Article 8* of the European Convention on Human Rights of the minimum income requirement for entry clearance or leave to remain as a partner or child under the family Immigration Rules in Appendix FM* and of the basis on which that requirement must generally be met. However if there are other reliable sources of finance above those currently allowed should be taken into account in situations in which refusal of the application could otherwise breach Article 8 and that Appendix FM did not give direct effect to the Secretary of State’s duty under Section 55* to have regarded as a primal consideration to suit a child’s best interests in an immigration decision affecting them and their livelihood.
The alterations provided in this statement are to give effect to those findings. They put in new basic provisions in Appendix FM. The specific circumstances are the minimum income requirement has not been met and it is clear from the data provided by the applicant that there are exceptional situations in which could alter denial of the application which would be a breach of Article 8 because it could lead to harsh repercussions for the applicant, their partner or a child under the age of 18 who would be affected seriously by a refusal of the application.
The new paragraph 21A of Appendix FM-SE makes other sources of income, financial support or funds put into account by the decision-maker in such cases. There is also a credible assurance of sustainable financial support from a third party or any other credible and reliable source of income or funds available to the couple.
Other minor and technical changes and clarifications have been made to Appendix FM. A few to note:
- New rules ensure that children are given leave of the same duration and are subject to the same conditions as their parent or guardian
- Also, they ensure that the partner of someone with refugee leave or humanitarian protection cannot qualify for Indefinite Leave to Remain before that person has done so
Article 8-It is the right to respect for private and family life.
Appendix FM– It is the route in which Non-UK residents are able to enter or remain in the UK on the basis of their family life with someone who is a British citizen, is settled in the UK or is in the UK on a limited leave or humanitarian protection Asylum etc.
Section 55-This provides the Home Office the duty to protect and promote the Welfare children when making decisions which will affect them.