UK Home Office introduces new ways to meet the minimum income requirements

Published: 08/08/2017

On 10 August 2017 the UK family immigration category will undertake a practical and long awaited common sense amendment. The current rules require a British citizen sponsoring a non-European family member to meet the minimum income threshold of £18,600 or more depending on the number of children applying for a UK settlement visa or further leave to remain together with the principal applicant, i.e. foreign partner, fiancee or spouse. As a result, many families were forced to decide whether it was better for the sponsoring British citizen to relocate to their partner’s country of residence or arrange a short term family visitor visa for their non-EEA family member to ensure that they could at least see each other a few times a year in the UK, but never being able to settle in the UK due to not meeting the UKVI income threshold criteria for approval.

The wording “ the onus is upon the sponsor to show sufficient income” meant that even if the offshore applicant had high credentials or a good paying job at the time of application, their income from employment could not be considered. Applicants could only rely on savings and non-employment sources of income, such as government or private pension, rental or investment income received on a regular basis etc. Applicant’s employability and earning potential in the UK could not be considered as a matter of pre August 10 immigration policy unless the applicant was physically in the UK with permission to work at the time of application. This also meant that wealthy family members would not even be able to help their son, daughter or sibling meet the UKVI income requirements through being somewhat of a third party guarantor in the event of job loss of the sponsor, or out of having income that would help the couple later on in case of emergency. Third party sponsorship was not allowed under the current rules. However, the new legislation that comes into effect on 10 August 2017 will give many families hope again.

The new rules will contain the following key provisions:

  • Couples can use third party financial support in some cases;
  • It may be possible to use a mortgage to meet the shortfall of any income;
  • The best interest of any dependent children under 18 must be considered;
  • If there are exceptional circumstances related to children under 18, benefits can be accepted as a source of income if the sponsoring British parent is on a low income;

Third party support:

The new rules indicate that in certain exceptional circumstances third party financial support will be accepted. Essentially, this provision will allow a British citizen or legal permanent resident to have support from a family member to enable them to sponsor their foreign partner for a UK settlement fiancée, unmarried partner or spouse visa. Third party co-sponsors must be prepared to show evidence of their finances, as opposed to just confirming they will support the applicant in the UK. The supporting third party family member will almost stand as a guarantor for the duration of the settlement visa or further leave to remain. They will also need to prove that the relationship between the sponsor and themselves as the third party is not likely to change. A family relationship would show more stability and consistency, than a recent friendship. The UKVI caseworkers must be satisfied that the rules will continue to be met after the visa is granted. This is one of the reasons why a permanent employment contract and verification letter from the third party as well as proof of long-standing family relationship with the third party is paramount in order for a family member to be considered a suitable candidate under the new rules.

Prospective employment or self-employment income:

The previous immigration rules indicated that the sponsor had to be with their employer for at least six months earning the minimum income as listed above. If the sponsor had recently started new employment they needed a letter from the new employer confirming the income amount and evidence of earning £18,000 within the last 12 months prior to application. This again was a very impractical approach, as some sponsors, previously unemployed or only earning enough to meet their needs due to possibly living with parents and having very low expenses, were forced to seek employment meeting the rules. Yet despite having new employment meeting well over the threshold, they would be forced to wait until they had been with the new employer for at least six months, unless they had other salaried employment or sources of income in the last 12 months immediately preceding the date of filing the application. Potential income would have been refused by the UKVI caseworkers because there was no scope in the rules for it.

Thankfully the new rules indicate that if there is credible prospective earning potential from the sustainable employment or self-employment of the applicant or their partner, the application can be considered. Therefore, there will be no need to wait until the sponsor has been employed for six months, or met the £18,600 in employment immediately prior to the application being submitted. The sponsor will simply be able to show that they have been accepted for a position with an employer earning £18,600 per annum or that they will commence the aforesaid position within the next three months. Once a formal offer is made and the contract or confirmation letter has been received by the sponsor for the new employment, this can be used to show the income requirements will be met within three months of the applicant arriving in the UK.

Furthermore, the new rules allow for self-employed sponsors to use prospective income from upcoming contracts to meet the financial requirement. Once the sponsor can provide a signed or draft contract for services as a contractor or franchise, on the instructing business / company’s letterhead confirming that the self-employed sponsor has been instructed for engagement of services within the next three months, this can also be used to meet the requirements.

Mortgages as a source of income:

The new rules will allow credible and reliable sources of income to be used to assist the applicant and their sponsor in meeting the income threshold requirements. The UKVI will accept a residential or commercial mortgage as a source of income. While the cash savings for now is still an option, very few couples have over £62,000 in savings and so therefore the sponsor or their family may decide to sell a property they already own and purchase a property with a mortgage amount or loan to value slightly higher than the sale price of the property in question. This would then allow for any excess in profit for after the sale, and the extra funds from the slightly higher mortgage loan to value, to be used to meet the shortfall. This option is a much more viable source of meeting the rules, once the higher payments are affordable for the sponsor.

Considerations of the HRA 8 and children:

While the intention to remove the Human Rights Act Article 8 (right to private and family life) aspect from the initial FM Appendix 1.7, was created to allow for the refusal of cases that did not meet the rules, without the couple having leeway to use the aforesaid article of the HRA 1998, the UKVI have been forced by the Supreme Court to consider the best interest of child under 18. Therefore, as immigration is often a family affair, the UKVI should also be under the obligation to consider a principle which is highly valued in family law. The Supreme Court has directed that the new immigration legislation considers that there are some situations where an offshore parent of a child in the UK would be disadvantaged by the decision to refuse the application based on the income requirement not being met.

School runs, child care, school holidays and part-time employment are scenarios that many parents across the UK face, naturally realising that once they decide to have children, they automatically will have to sacrifice income, working shorter hours just to be able to spend time with their children, or to collect their children from school. While the income sacrifice is not always a preferred choice, most mothers accept this as part and parcel of having the opportunity to be a mother to their children, being there for the first day of school, being the first one and the end of the school day to receive a painting which while appearing as a few brush strokes on a page, tells scores about how much the child loves their mummy (or dad). To receive such joys and to support their children as they grow up, to retrain as a teaching assistant or obtain employment which one may be over qualified for, just to fit around school hours is one of the first things most mothers prepare themselves to do whilst before the child gets into school, so that there is a smooth transition, and they can both enjoy the mother-child bond they hold.

However, this logical employment decision within the above scenario almost penalised parents with foreign partners, especially those without local family support in caring for the children. Not only do more and more parents who have their spouses abroad and raise children alone, they are stuck in an additional situation, which most UK based parent families or single UK based parents do not face. This “catch twenty-two” situation, whereby they must work to support their children and all expenses, subject to the school run and school holidays, with the reality that when working part-time (in some sectors) they may never meet the income requirement that would enable the offshore parent to come to the UK, and share the financial responsibilities.

The result? Children are left disadvantaged, because logically, there is no way a mother working part time, trying to juggle a work-life balance, can expect to be able to earn enough to bring the foreign spouse into the UK, or to take the children to see their other parent abroad. The mother then is stuck in a cycle of working to meet the requirements, spending hundreds of pounds in child care per child, per hour just to be able to bring the other parent over, or saving what can be saved and only being able to take the children to see the offshore parent once a year.

Therefore, the new August 2017 legislation will be a breath of fresh air to parents in this situation as it now covers Article 8 consideration and such exceptional circumstances. Therefore, refusal of a settlement spouse or partner application due to falling short of the requirements would deprive the rights of a child under 18 by invoking harsh consequences on that child or partner. It will now become mandatory for the UKVI caseworkers to consider the interest of any child under 18, coupled with the new forms of financial assistance which can finally be utilised.

Duration of leave to remain when applying under the new rules:

Non-EEA nationals granted a UK settlement fiancee, de facto partner or spouse visa under the new rules will be placed on a 10 year to settlement. If during this time the applicant and their sponsor meet the income requirement without the above-referenced exceptions, including third party financial support, then the applicant can revert to being on the 5-year route to settlement.

The new legislation is to be enacted within the next 48 hours. If you feel that your situation may meet the new rules, we encourage you to contact us for a free UK marriage visa eligibility assessment. Please complete the online assessment form or call us if you wish to discuss your case with one of our UK visa advisers.

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