Will changes to the immigration rules still present a challenge for spouses to live together?

Following the landmark Supreme Court decision in the case of R (on the application of MM (Lebanon)) v Secretary of State for the Home Department in February 2017, although the judges upheld in principle the Minimum Income Rule, which requires an income of at least £18,600 for British citizens and others to sponsor a foreign partner, the decision did offer a glimmer of hope for the countless number of couples who, although in possession of sufficient funds, cannot meet the onerous rules with regard to the source of the income. The judgment refers to the fact that 30,000 spouse applications were refused between 2012 and 2014 and only 26 were referred for further consideration outside of the Immigration Rules, relying instead on Article 8 human rights grounds.

The court did however rule that the Minimum Income Rule was unlawful in failing to protect children and failing to take account of other sources of income not permitted under the immigration rules.

For example, in the case of British citizens who are not in active employment, perhaps through child care commitments or study, unless these individuals can provide evidence of savings of at least £62,500, their foreign national partner will not be able to meet the minimum income requirement in an application for entry clearance, even if said partner is earning in excess of £18,600.

Viewers of the May/Corbyn Q and A session hosted by the BBC a few days prior to the General Election on 8 June 2017 might recall listening to the plight of a young member of the audience, pleading for these rules to be softened. She recounted how she had met her husband at university in the UK, fell in love and married, only to then have to immediately separate and conduct a long distance marriage once his studies ended, so that they could amass the necessary £62,500 in savings, which has to be held for six months!

So, what is this glimmer of hope offered by the esteemed Supreme Court judges? An opportunity for the government to amend this unfair rule to permit the income of the foreign partner to be taken into account you might think! Alas not so.

The government published its latest Statement of Changes on 20 July 2017 with the stated intention on giving effect to the decision in MM. The main provisions are:

• new general provisions which require the decision-maker, in the circumstances specified, to consider whether the minimum income requirement is met if the other sources of income, financial support or funds set out in the new paragraph 21A of Appendix FM-SE are taken into account.  The specified circumstances are that, firstly, the minimum income requirement is not otherwise met and, secondly, 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, whom it is evident would be affected by a decision to refuse the application.
•   Paragraph 21A of Appendix FM makes provision as to the other sources of financial support which the decision-maker will take into account in such cases.  These are:  a credible guarantee of sustainable financial support from a third party; credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or any other credible and reliable source of income or funds available to the couple. Paragraph 21A also makes provision for particular factors which the decision-maker will consider in determining the genuineness, credibility and reliability of such other source of income, financial support or funds.
• A requirement that the decision-maker, when an application does not meet the requirements of the rules, goes on to consider on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of the application a breach of Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family.
• A requirement for the decision-maker, in considering an application under the new general provisions, to have regard, as a primary consideration, to the best interests of any child affected by the decision.
•  A stipulation that grants of visas under these new general provisions will put applicants on the 10-year route to settlement, with scope to apply later to enter the five-year route where they subsequently meet the requirements.
•   Measures to ensure that a child is granted leave of the same duration and subject to the same conditions as their parent, who is or has been granted leave under these rules.
•  Measures to ensure that the partner of a person with refugee status or enjoying humanitarian protection cannot qualify for indefinite leave to remain before their partner does.

It is hard to conceive of circumstances which are not exceptional when considering the enforced separation of a family. No doubt these rules will give rise to a substantial body of case-law to decide where the line should be drawn and most cases will inevitably be decided on their facts. It is regrettable that the government does not define ‘unjustifiably harsh’ consequences, which means that applicants will have to amass strong evidence in support of their application in the hope that it meets the unknown threshold of harshness in order to engage Article 8.

Where there are children involved, it is most likely that Article 8 will be engaged, in order to meet the requirement to ensure the best interests of the child are served.

Not only do these rules impact British citizens but also those with indefinite leave to remain (ILR) in the UK. Following Brexit, EU citizens will have to apply for ILR in order to secure ongoing rights to remain in the UK. They will also be subject to the Minimum Income Rule should they wish to bring  family members to the UK. Until now EU citizens have been able to bring their non-EU family members to the UK by meeting a considerably lower income threshold.

Certainly the immigration rules continue to throw up challenges for couples and their children to get on with their lives in the UK and no doubt the EU dimension will engender further complexity.