As of 10 August 2017, the much awaited change to the UK Home Office Policy Guidance has now been revealed. We previously wrote about the impact of MM Majid Javed v SSHD and the impending change to the Home Office Policy Guidance on meeting the Minimum Income Requirement under Appendix FM Immigration Rules for Spouse Visa and other Family Member visa applications. The new Home Office Policy Guidance essentially introduces a new Unjustifiably Harsh Consequences Test by considering any interests of children and alternative sources of income in meeting the Minimum Income Requirement.
What is the New Unjustifiably Harsh Consequences Test?
The new Unjustifiably Harsh Consequences Test applies in Spouse Visa and Family Member Visa applications, where applicants do not meet the Minimum Income Requirement under Appendix FM Immigration Rules. However, if the Home Office accepts that the refusal could lead to unjustifiably harsh consequences; applicants will be permitted to rely on other alternative sources of income, financial support or other funds to make up the deficit in meeting the Minimum Income Requirement.
The New Unjustifiably Harsh Consequences Test as a Two-Stage Test
The new Home Office Policy Guidance has set out a Two-Stage Test to be applied in Spouse Visa and Family Member Visa applications in situations when the Minimum Income Requirement cannot be met.
The First Stage is that the Home Office should consider alternative sources of income in meeting the Minimum Income Requirement where:
The decision maker must consider whether the refusal of the application could breach ECHR Article 8 because it could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child…The decision maker must take into account, as a primary consideration, the best interests of any relevant child. (Emphasis Added)
The Second Stage is that the Home Office must consider any other exceptional circumstances where:
The decision make must consider whether there are exceptional circumstances which would render refusal of the application a breach of ECHR Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family…they must grant entry clearance or limited leave to remain. (Emphasis Added)
The full Home Office Policy Guidance can be accessed here in two parts: Appendix FM Section 1.0a Family Life as a Partner or Parent – 5 year route LEXVISA Solicitors and Barristers & Family Life as a Partner or Parent and Private Life – 10 year routes guidance August 2015 LEXVISA Solicitors and Barristers
Evidence required in meeting the New Unjustifiably Harsh Consequences Test
The Home Office has inserted a new paragraph 21A under Appendix FM-SE Immigration Rules, which sets out where the Minimum Income Requirement is not met, a decision maker must take into account the sources of income, financial support or funds by way of:
- A credible guarantee of sustainable financial support to the applicant or their partner from a third party;
- Credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or
- Any other credible and reliable source of income or funds for the applicant or their partner, which is available to them at the date of the application or which will become available to them during the period of limited leave applied for.
In practice, where the new Unjustifiably Harsh Consequences Test applies, the Home Office may contact the Applicant in such circumstances seeking further information and allow the Applicant to provide the required evidence within 21 days of the request being made by the Home Office.
Using Legal Representations to make a Spouse Visa and Family Member Visa Application
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to submit a Spouse Visa application.
A Spouse Visa application can be complicated at times as the Home Office have imposed highly specific requirements for applicants to meet. Our expert immigration solicitors will provide you with a tailored service and are on hand to expedite the Spouse Visa process.
This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.
How to make a successful Spouse Visa and Family Visa Application
To make a successful Spouse Visa application you must meet the Home Office’s requirements, we have previously written about the stringent requirements. It is important to note that the Home Office’s requirements are a set of rigorous rules. However, you should note that there are numerous ways you can satisfy these rules. It is imperative you obtain the correct guidance before submitting any visa and immigration application. The UK immigration rules are complex and so it’s advisable to seek legal advice to avoid refusal.
In our expert experience, we have assisted clients in the past who have assumed that they do not meet the requirements but once we explore their circumstances we discover they do meet the requirements. A common question we often come across is regarding the financial requirements. The financial requirements may be satisfied through various different avenues such as salaried employment, self-employment or cash savings. You may wish to contact us if you have any questions regarding any of the requirements.
Advice from LEXVISA UK Immigration Solicitors on Submitting a successful Spouse Visa and Family Member Visa Application
Our team of solicitors and barristers bear in mind the paramount duty of all legal representatives to act in your best interest whilst complying with the strict letter of the law. Our team of specialists can be distinguished from other law firms with our client-tailored approach and scrutiny of options available to you from the outset. We will be able to advise you in respect of the merits of your UK Spouse Visa application by providing you with advice from our leading team of solicitors before your matter even reaches the Home Office. We can assist you with the preparation of your visa and immigration application and ensure that you meet all the requirements of the relevant rules.
If you wish to consider your options, please call our Immigration Team so we can assess your matter and if necessary advise you of the next steps you should take in a consultation.
We are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients. We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.