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Minimum income requirement under Appendix FM: is there room for flexibility?

As has been discussed in one of our previous blog posts, the minimum income requirements for those applying for entry clearance to the UK as a the spouse of a British citizen or settled person can be difficult to meet.

The minimum income requirement

According to Appendix FM to the Immigration Rules applicants for entry clearance  must provide evidence of an annual income of at least £18,600, plus an additional £3,800 for the first child and £2,400 for each additional child. If the applicant’s partner is not working, they can also meet the financial requirement through other sources such as savings, pension income, or income from property rental, as outlined in our post here.

The approach of the courts to the minimum income requirement

In recent years, the courts have considered whether it is necessary to meet the income requirement exactly,  or whether there may be room for consideration of ‘compelling circumstances not sufficiently recognised under the rules’ in cases where those wishing to come to the UK cannot meet the requirement.

Most recently, the Court of Appeal considered two appeals in Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 1776. In both of these appeals, those seeking entry to the UK had been unable to meet the minimum income requirement at the point when they made their application.  Despite this, however, the First and Upper Tier Tribunals held that the applicants would in reality have enough money to maintain themselves and their family upon arriving in the UK. It was therefore decided that entry clearance should be granted. The Secretary of State appealed this decision.

In reaching their conclusions, the Tribunals had relied heavily on the High Court decision of Blake J in R (on the application of MM (Lebanon)) (Appellant) v Secretary of State for the Home Department (Respondent) [2013] EWHC 1900 (Admin). In this case, Blake J found that the minimum income requirements were too high, stating that they were ‘so onerous in effect as to be an unjustified and disproportionate interference with a genuine spousal relationship’. In particular, he noted that the financial requirement was far higher that the lowest maintenance threshold identified by the Migration Advisory Committee (£13,400), and that the rules currently do not take account of the applicant’s future earning capacity upon their entry to the UK.

Unfortunately, when the Secretary of State appealed against Blake J’s determination, the Court of Appeal and Supreme Court decided that the approach had been incorrect. The court held that the minimum income requirement was justified by the need to ensure that a families would not be in a position where they would need to access welfare benefits. In their view, this was a justified interference with the right to family life of the individuals involved.

In MS (Pakistan), the question then became whether the Tribunals’ error in relying  on Blake J was fatal to their determinations. It was not obvious that it would be, since in the case of SS (Congo) (Appellant) v Entry Clearance Officer [2017] UKSC 10, the Supreme Court held that although the Tribunals’ use of Blake J’s guidance figure of £13,400 was an error, the rest of the determination remained valid. This was because, “it would be unfair to subject them to the uncertainties of a rehearing unless there were substantial grounds for thinking that a different result would be reached”.  The Supreme Court decided that their decision should be upheld, as there were still some factors which justified a decision being made outside of the Immigration Rules.

In SS (Congo), it was held that one of these factors could be  insurmountable obstacles to the claimant and her husband living together in their country of origin. Similarly, in allowing the appeal to the Supreme Court in MS (Pakistan), it was found that the Secretary of State should provide clearer guidance in these cases about the need to treat the interests of children as a primary consideration. However, despite the involvement in a child in the second appeal in MS (Pakistan), it was decided that the minimum income requirement remained appropriate, and entry clearance should be refused.

Both Lord Justice McCombe and Lord Justice Lindblom expressed surprise in MS (Pakistan) that the individuals seeking entry clearance had chosen to pursue appeals. They stated that it would have, in these cases, made more sense to make a new application when it was possible to meet the minimum income requirement. In the approach favoured by Blake J, a new application would not have been necessary as the Tribunals would be able to exercise flexibility. They would be able to look at the reality of the financial circumstances as opposed to the specific requirements of the rules. However, in the case of MS (Pakistan), it was made clear that such flexibility will not be permitted.

This means that if you are making an application for entry clearance to the UK as the Spouse of a British Citizen or settled person, it is very important to carefully consider the timing of your application.  As recognised by the Court of Appeal, the individuals in both of these cases could have saved the time and the cost of the appeals process if they had waited until the specific requirements of the rules could be met. They could not, as might have been hoped, rely on the practical approach of Blake J to support their cases at a later stage.

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