Meeting the Appendix FM financial requirement with an income of less than £18,600

In light of the Supreme Court judgment in MM (Lebanon) & Others v SSHD [2017] UKSC 10 the financial requirement set out in Appendix FM has changed substantially.

The Supreme Court held that the minimum income threshold itself was lawful but that exceptions should be made in some circumstances.

Previously, it was possible to meet the threshold (£18,600 for a couple with no children) only by relying on the Sponsor’s income from a specified source. The ‘specified sources’ are:

• Salaried or non-salaried employment;
• Self employment;
• Non-employment income (such as from property rental, dividends or shares);
• Cash savings above £16,000;
• Pension income

The changes to the Rules mean that now other sources of income can be relied upon in exceptional circumstances set out in Paragraph GEN.3.1.(1) of Appendix FM. This applies where:

• The minimum income requirement applies and is not met from the specified sources; and

• 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 relevant child

In these limited circumstances, the Rules now require that the decision maker considers whether the minimum income requirement can be met if other credible and reliable sources of income, financial support or funds available to the couple are taken into account. The threshold for finding such exceptional circumstances is said in the guidance to be a high one.

The alternative sources of income/support/funds are set out at paragraph 21A of Appendix FM-SE and include:

(a) Third party support when there is a credible guarantee of sustainable financial support;

(b) Prospective earnings of the Applicant from the sustainable employment or self-employment; or

(c) Any other credible and reliable source of income or funds, which is available to the couple at the date of application or which will become available to them during the period of limited leave applied for. This includes cash savings which have been held for less than 6 months and funds from mortgaging a property.

Paragraph 21A of Appendix FM-SE also sets out objective criteria to which the decision-maker must have regard in assessing genuineness, credibility and reliability of the sources of income, financial support or funds.

The Applicant is still required to meet the financial requirement but can rely on these additional sources of income in addition to the specified sources in order to make up any shortfall.

However, in circumstances where there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application, the new Rules require that the Applicant “will generally be granted” appropriate leave.

The Rules also now expressly require that the best interests of any relevant child are taken into account.

These changes are likely to have a substantial impact on those who are unable to meet the financial requirement.

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