Amendments to rules on bringing family members to the UK: Have the Government gone far enough?

Successful negotiation of the visa system has always required an applicant to show that they will not be a financial burden on the state when they arrive in the UK. Each visa category has traditionally set the financial bar at a different level. Pre-2012, British citizens who wanted to bring family members to the UK only needed to show that they could ‘maintain and accommodate’ the applicant when they arrived in the UK. This allowed some flexibility and discretion on the part of the decision maker as to whether an applicant could be financially supported. The rule of thumb was that as long as you could demonstrate an income greater than the threshold for income support you would be ok.

This all changed with the introduction of Appendix FM to the Immigration Rules in 2012. This created a set income threshold for British citizens, or those with indefinite leave to remain, who wanted to bring a family member such as a spouse or child into the UK. The Home Office now requires the sponsor to have an income greater than £18,600 at the date of application and for the six month period predating it.

Thousands of families have been adversely affected by the financial provisions in Appendix FM. It has led to couples being separated, often as the principal bread winner of the family was not British or the sponsor has not yet worked for the full six months at the required income level. This in turn has led to the birth of the notion of ‘skype kids’ who are deprived of direct contact with one of their parents due to the harshness of the Appendix FM rules.

The lawfulness of the income threshold was inevitably challenged in the courts, and the Supreme Court decision in MM(Lebanon) released earlier this year upheld it in principle. However, the court also held that the rules and policies used by the Home Office to assess such cases would need to be amended to take proper account of the impact on children and other possible sources of income and support available to a family.

The Home Office has now responded to the judgment and drafted amendments to Appendix FM. The new rules require the decision maker to consider whether the minimum income threshold can be met by other sources of income, financial support or funds. The Home Office is now compelled to consider whether there are ‘exceptional circumstances’ which could amount to a breach of Article 8 of the Human Rights Act 1998 because it could result in unjustifiably harsh consequences for the applicant or their family member.

The new forms of evidence which can be taken into account when considering if an applicant can meet the income threshold include;

• 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
• Any other credible and reliable source of income or funds available to the couple

The new provisions are to be welcomed and go some way to mitigating the severity of the minimum income threshold. However, a family still has to show that it would be ‘unjustifiably harsh’ for the Home Office to refuse the application. This requires the Home Office to employ a degree of empathy towards visa applicants that is often in short supply in the decision making process. It is also clear from the recently amended guidance on Appendix FM, that the bar will be set high when establishing what is ‘unjustifiably harsh’, as mere ‘quality of life changes’ will not be sufficient.

There is also a sting in the tail. If an applicant is successful in relying on the new provisions they will not be granted the usual 30 month visa along the five year route to settlement which is normal for Appendix FM applications. They will instead be granted leave on the 10 year route to settlement, an inferior form of status.

There are already reports of a challenge to the new provisions. The Joint Council for the Welfare of Immigrants (JCWI) has condemned the changes as ‘mere tinkering at the margins’ and threatened to return to court to challenge its provisions. Sources in the Government have indicated that the changes are just ‘presentational’ and they intend to maintain the hard line towards family applications illustrated in the Tory Party’s manifesto, which promised to increase the income threshold during the next parliament. The Government is likely to find though that with EU nationals and their family members being given the status of indefinite leave to remain post Brexit, the controversy surrounding the financial requirements of Appendix FM will come to the fore again and the pressure to make it easier for families to reunite in the UK will only increase.