Upcoming Changes to Financial Requirement for non-EEA Nationals and Minimum Earnings when Applying for Family of a Settled Person Visa

From 10 August 2017, there will be changes to the Immigration Rules on the minimum income requirement imposed on UK visa applications for the family members of those settled in the UK.  The changes are in response to the judgment of the Supreme Court in the case of MM (Lebanon) and others v Secretary of State for the Home Department, which was decided in February 2017.

The Minimum Income for Family of Settled Person Visas in the UK

The Lebanon case challenged the requirement in the Immigration Rules for non-EEA family members of persons settled in the UK to prove they have an annual income of at least £18,600 (plus additional sums for dependant children) when applying for a visa to live with their family in the UK. The rules on meeting the financial requirement are complicated but, in general, only allow the current salary of the non-EEA visa applicant to be taken into account if they are already in the UK. So, for example, if a dual British and Australian national and her Australian husband want to move to the UK, the husband will only meet the visa application financial requirement if his wife has a job with a salary of £18,600 or they have substantial savings or other income. His current salary cannot be taken into account when applying for a UK visa.  
 

Failed Visa Applications

The case was brought by a number of individuals whose visa applications had been refused for failing to meet this requirement, including a family with children. The Supreme Court decided that whilst the minimum income requirement is acceptable in principle, the Immigration Rules and guidance were unlawful as they did not make clear that the Government also has a duty to safeguard and promote the welfare of children when making decisions which affect them (in keeping with Article 8 of the European Convention on Human Rights, the right to private and family life).
 

Considering Other Sources of Income 

In light of this, the Immigration Rules will be amended so that, from 10 August, when processing these visa applications the decision-maker will consider alternative sources of income or support when considering whether the minimum income requirement is met (such as ‘credible’ guarantees of support from a third party or ‘credible’ prospective earnings from sustainable employment). They will do this where the minimum income requirement is not otherwise met, but there are exceptional circumstances which could mean that refusing the application would lead to ‘unjustifiably harsh’ consequences for the visa applicant, their partner or a child.
 
This change could lead to more successful entry clearance applications from family members of British/settled persons, which, with Brexit looming, may be an attractive alternative visa application route for families looking to settle in the UK in the future. However, the changes also introduce a much greater degree of discretion for the decision-maker which could lead to inconsistency in the treatment of cases. The rules and guidance in this area are becoming increasingly complex and so it is crucial to carefully check that you meet all of the criteria before applying for a family of a settled person visa and take legal advice as necessary.

For more information around UK visa applications and non-EEA workers, visit our Immigration pages or contact the author on e.timmins@doyleclayton.co.uk.