A new case from the Upper Tribunal, Hameed (Appendix FM – financial year)  UKUT 00266 (IAC), has highlighted that the financial year for the purposes of Appendix FM is the tax year and not the business year for applicants, which they selected for accounting purposes. The focus of the case was whether or not the judge was correct in his approach when dealing with the self employed aspect of Appendix FM (financial requirement).
Hameed: Facts of the Case & Upper Tribunal (Immigration & Asylum Chamber) Determination
The Appellant, Umair Hameed’s appeal against the Home Office’s decision was dismissed by Judge Mcgavin in the First Tier Tribunal on 21 October 2013 based on the sponsor’s inability to meet the financial requirement. The Appellant had made an application to enter the UK as the spouse of a British citizen and had to show that he would be adequately maintained by the sponsor, who was earning more than the amount of £18,600 as a self employed individual. The application was refused by the Home Office due to the fact that the sponsor sought to rely on her avergae earnings for the last 2 years based on her business accounting years, instead of the HMRC tax years.
In the Upper Tribunal, the Appellant’s representative Mr Shoaib, stated that:
“businesses may choose their own financial accounting year (which is correct), and that he had relied on information from the sponsor’s accountants of her income for two such years. She could not show the necessary income by averaging over two tax years, because her business did not begin until the first half of the first tax year had already gone by.”
The financial year for these purposes is the tax year (in this case, the years to 5 April 2011 and 5 April 2012) not the year which the sponsor selected for accounting purposes. It is the latest tax return which must show the necessary level of gross income, with the alternative of averaging the two most recent such returns.
Upper Tribunal Judge Hugh Macleman, found that the First-tier Tribunal ‘does not err law’, therefore the dismissal stands.
Qualifying criteria for UK Marriage or Spouse Visas
In order to obtain a Marriage or Spouse Visa you must:
- Apply for entry clearance for your spouse/civil partner before travelling to the UK;
- Have met each other, be legally married to each other and plan to live together;
- Meet with the minimum income threshold requirement of £18,600 for sponsoring the settlement in the UK of a spouse or partner, or fiancé(e) or proposed civil partner of non-European Economic Area (EEA) nationality, with a higher threshold for any children also sponsored; £22,400 for one child and an additional £2,400 for each further child;
- Any of the above stated income can be from the applicant and sponsor’s total income;
- Be able to accommodate yourself and your dependants entirely without recourse to public funds; and
- Be able to communicate in English and present an English language speaking and listening qualification at a minimum A1 level or above of the Common European Framework of Reference for Languages unless you are exempt.
Are you affected by the ‘Financial Requirement’?
The Home Office’s rules on financial requirements affect non-European Economic Area (non-EEA) nationals applying to enter or remain in the UK under the family migration route. The rules define the basis on which a person can enter or remain in the UK on the basis of their family or private life. If you intend to make an application as the spouse, partner, fiance(e) or proposed civil partner of a British citizen, you and your sponsor will need to meet the financial requirements.
If you would like to discuss how the financial requirement may affect you, please contact us today and our London immigration solicitor’s will be able to assist you by meeting with you and reviewing your case.