Passportia advises couples who are resident outside the UK where one partner is a British citizen and the other partner is subject to immigration control. In order for a British citizen to sponsor their partner to settle in the UK, the couple must satisfy a minimum income requirement. This is imposed by Appendix FM of the Immigration Rules.
Meeting the Financial Requirement
If you are sponsoring your partner, you can meet the financial requirement through:
- Savings;
- Income of £18,600 p.a.; or
- A combination of both.
(The rules allow a third possibility for those in receipt of certain benefits for those who are disabled or unwell. However access to welfare payments is usually restricted to those habitually resident in the UK. If you are currently living outside the UK this is less likely to be a solution.)
Cash Savings
In certain circumstances (see 'Income Requirement') where an income level is below the all-important £18,600 level, you can use cash savings held by you or your partner to make up for the shortfall. Where this is permitted, the cash savings required are £16,000 plus 2.5 times the difference between the income and the £18,600 level. The amount required must be held in cash at the date of your application. Cash can result from the sale of investments such as stocks, shares, bonds or trust funds, if you or your partner held those assets at the start of the 6 month period preceding the application, and the cash results from a sale within that period. The cash can also result from the sale of land, if you or your partner held the land at the start of the 6 month period preceding the application, and the cash results from a sale within that period. In other cases, the savings must have been held in cash for the 6 months preceding the application.
Income Requirement
Assuming you are now living outside the UK, the way in which the income requirement must be met changes depending on whether you have been with your current employer for longer than 6 months. In either case, you will need a confirmed job offer in the UK to start within 3 months of arrival. Where you have been with your current employer for 6 months or longer, you can rely on your lowest rate of earning in the last 6 months. If this is below £18,600, it can be supplemented by cash savings. You must also have a confirmed offer of employment in the UK starting within 3 months of your arrival. If your offered salary is below a rate of £18,600 it can be supplemented by cash savings. When you have been with your current employer for less than 6 months (or you are currently unemployed) you will need a job offer in the UK to start within 3 months of your arrival paying (at least) £18,600. A shortfall in the salary offer can be supplemented with cash savings. However, you must also demonstrate that in the last 12 months you received at least £18,600 in total, and this amount cannot be supplemented with cash savings.
Some Consequences
The financial requirement imposes a very significant hurdle on some couples living abroad who wish to migrate back to the UK, and the results are not intuitive. For example, the non-national spouse may have a confirmed job offer in the UK sufficient to support both parties. The British citizen spouse working outside the UK may have very good job prospects in the UK, but no job offer at the date of application. Or the sponsor may undertake work paying less than £18,600 p.a. in an emerging economy with a weak currency, which would be worth in excess of £18,600 when they moved to the UK. Moreover the evidential hurdle in proving salaried income earned abroad to the satisfaction of the decision-maker can be significant. For example, where the pre-tax income cannot be established, caseworkers are instructed to use the net income, on the argument that they must be satisfied that the proper tax has been paid. The result however is to significantly underestimate a person's true income.
Planning Ahead
If you and your partner are living and working abroad, and considering migrating to the UK, it could well be a strategic mistake to stop working and liquidate assets, before you apply for the spousal visa. By the time you submit your application,if you stopped working several months previously, your income in the last 12 months may be less than £18,600, even though you were earning at a rate above that amount before you stopped work. It is imperative in most cases that the sponsor remains in work when the application is submitted, and in all cases that there is a job offer in the UK before application. If you are still in work you should ensure that all the relevant payslips are generated and retained, together with bank statements showing payments being received into your account. In many cases it may be necessary for the British citizen to visit the UK before the settlement application is submitted, to secure a job offer. The non-national spouse may apply to accompany them as a visitor.
Legal Challenge to the Rules
A challenge by way of Judicial Review to the July 2012 rules is currently underway in the UK courts. The High Court delivered judgment in the case of MM [2013] EWHC 1900 (Admin) in mid-2013. It was decided that in certain circumstances the rules are unfair (specifically, in breach of Article 8 ECHR, the right to respect for family and private life). This would require the Home Office to formulate new rules. However, a decision has been made instead to appeal the decision to the Court of Appeal, and the case is due to be heard in March 2014. In the meantime, while the MM appeal is ongoing, the Home Office is holding applications which would be rejected only because of the financial requirement. It is not known what the Court of Appeal will decide, however if the Home Office loses in the Court of Appeal, there is a significant chance of an onward appeal to the Supreme Court, stretching the process out yet further. Whilst the Home Office is placing cases on hold, individual applicants are not being issued with refusal notices, preventing them from appealing to the First-Tier Tribunal. This is important because, regardless of whether the rules themselves are contrary to Article 8, an Immigration Judge could still potentially decide that the refusal decision was a breach of Article 8 in a particular case, even if the application did not satisfy the financial requirement in the rules. Furthermore, the current Immigration Bill before Parliament proposes to remove rights of appeal for all appeals except those based on asylum or human rights. Where an application has been put on hold pending the outcome of the appeal in MM, serious consideration needs to be given as to how it is best to proceed, including the possibility of making another application under changed circumstances. Applicants should bear in mind that, even if the Home Office ultimately lose the appeal triggering a rewrite of the rules, those new rules may still result in the application being refused.
Alexander Finch, Senior Adviser,
Passportia
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