Update on the challenge to the financial requirement under Appendix FM of the Immigration Rules
UK Visas and Immigration (UKVI) has today released guidance regarding applications that are affected by the financial requirement imposed by Appendix FM of the Immigration Rules, requiring applicants to provide evidence of a gross annual income of at least £18,600. UKVI state that they are continuing to put on hold decisions in some applications for entry clearance/leave to remain as a partner or child until the legal challenge to the financial requirement has been finally determined by the courts.
UKVI state that, as at 31 December 2013, the number of settlement visa applications made overseas on hold was 2,628 while the number of applications for leave to remain in the UK on hold was 386. UKVI state that these figures are based on internal management information and are therefore subject to change. UKVI has not yet released up to date figures for the number of applications that are currently on hold, although we anticipate that the number of applications on hold is likely to have increased.
Applications which are being put on hold are those which fall to be refused solely because the applicant is unable to meet the financial requirement. Applications which fall to be refused for other reasons, for example failure to meet the English language requirement, will still be decided in the usual way.
On 4 and 5 March 2014 the Court of Appeal heard the Secretary of State's appeal against the judgment of the High Court in MM and Others v Secretary of State for the Home Department [2013] EWHC 1900 (Admin) in which the legality of the minimum income threshold requirement under Appendix FM was challenged. The judgment of the Court of Appeal has yet to be released. Whatever the Court of Appeal decide, the legal challenge to the financial requirement is likely to be taken to the Supreme Court given the importance of the issues to be resolved. The UKVI guidance states that it may be 'many months' before the matter is finally determined by the courts.
While this litigation is ongoing relevant applications will continue to be put on hold. This means that UKVI will take no action on the application and the applicant's passport and other documents will be retained. UKVI are therefore advising applicants to wait for the final outcome of this legal challenge.
Applicants may continue to apply for entry clearance or leave to remain as a partner or child under Appendix FM as normal. It is only if the income threshold is not satisfied will the UKVI put the application on hold.
If there has been a change in circumstances since the application was submitted such that the applicant is now able to meet the financial requirement of the Immigration Rules then evidence of this change in circumstances should be provided to UKVI as soon as possible.
If you would like expert immigration advice regarding the financial requirement under Appendix FM of the Immigration Rules, or for advice in relation to any other immigration category, then please contact our experienced immigration barristers on 0203 617 9173 or email info@richmondchambers.com.
