Posted on July 21st 2017
Yesterday, on the last day of the Parliamentary Term, the Government released a lot of news they did not want scrutinised. Hidden among this cache were the changes to the Immigration Rules intended to implement the ruling in the Supreme Court case of MM & Ors v SSHD  UKSC 10. These changes are intended to address the failings in the old Rules identified by the court.
The judgment called on the Government to change the Rules so that the best interests of affected children are given primary consideration in decisions, and recommended that alternative sources of income be taken into account where the British spouse does not earn enough themselves to meet the £18,600 minimum. This was in order to make sure that any refusal is not a disproportionate interference with the right to private and family life under Article 8 of the European Convention on Human Rights.
Since 2012, British Citizens and UK residents who want to live the in the UK with a non-EEA foreign spouse must demonstrate that they earn a minimum in £18,600 a year. This amount increases with every non-British citizen child included in the application. In MM it was argued that this requirement was unlawful and breached the human rights of those separated from loved ones just because they didn’t earn enough money.
In the five months since MM 5,000 applications were put on hold in the interim, with those families left in limbo. The Government has only now put forward its proposed changes. While in some ways they are an improvement on the old system, we have serious concerns about the way in which these changes have been written and how they may be implemented by Home Office staff.
The new Rules will take effect from 10 August 2017. We would expect that those cases that have been put on hold will start to be decided at that point, though it could take some time to work through the backlog.
What did the MM judgment require?
You can read our detailed analysis of MM here, but in brief the Supreme Court found that:
- The Rules must be changed so that they explicitly require caseworkers to take into account, as a primary consideration, the best interests of any child affected when making the decision;
- The Rules or guidance to caseworkers must be amended to allow them to take into account alternate sources of income when someone does not meet the income threshold.
The Key Changes
The new Rules have been set out in the traditionally incomprehensible way that the Home Secretary chooses to make such changes. They exist here in the form of a series of insertions, deletions and amendments to the already complex Appendix FM. Here, we pick out some of the key changes made in order to explain how they are structured in a simple and accessible way. Detailed legal analysis will follow from us once the guidance (Instructions) is published. This could be in August.
Our general concern is that these rules remain unnecessarily complex and place a lot of discretion at the hands of Home Office staff, and could be applied in a very haphazard way. Much will depend on the wording of the new Instructions.
Best Interests of Children
The new Rules have inserted a general obligation for Home Office staff, when considering an application that does not otherwise meet the requirements of the Rules, to take into account as a primary consideration the best interests of any child affected by the decision (‘relevant child’). A relevant child is one under the age of 18 for whom it is ‘evident’ from the information provided that they would be affected by a refusal. This could be a child in the UK, or a child abroad.
In MM, JCWI intervened alongside the Children’s Commissioner to argue that the old Rules did not adequately consider the best interests of children. The court agreed with our assessment and ruled that they must be changed to properly reflect the legal duty the Home Secretary owes to children.
The Rules have also been changed to state that any child included in a successful application will be granted the same route to settlement (5 year or 10 year) as their accompanying parent, with no consideration of whether or not that is in their best interests. This could be detrimental to children in some instances.
Alternative Sources of Income
The following two tests are inserted into the Rules:
- If a sponsor does not earn £18,600 and there are ‘exceptional circumstances’ which could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child, the decision maker must consider any alternative sources of income they may have. This could include the wages or earning potential of the foreign spouse, or support from other family members. If the decision maker accepts that these sources of income are sufficient to meet the Rules then the application should be granted.
- In any case where applicant cannot meet the Rules, the decision maker should consider whether there are exceptional circumstances such that a refusal would result in unjustifiably harsh consequences for the applicant, their partner, or a relevant child.
The meaning of exceptional remains the same as in the current guidance, however this may change.
The Statement of Changes (pages 10 -14) sets out the kinds of alternative income, financial support, and funds that will be considered and what applicants need to show in order to prove this. This is a complex and quite restrictive set of evidential requirements. It is likely to be quite strictly applied by Home Office caseworkers.
This is a step forward overall, and it will benefit those who can meet the MIR by evidencing the alternate sources of income that will be considered. However, the economic inequality embedded in the Rules for lower-income families without savings or support remains. It is possible that many have alternative sources of income, may find that they cannot satisfy the Home Office that their case meets the exceptionality test. In our view this is still not a proportionate system.
Information for those with applications on hold
Families with applications on hold should consider whether they want to submit further evidence in order to meet the new Rules. This could be evidence of alternative sources of income that would show that refusing the application would result in unjustifiably harsh consequences. It will be particularly important to raise the impact on any children, in light of the need to make their best interests a primary consideration.
We recommend seeking independent legal advice. JCWI also offers legal advice service, and you can find out more here.
What do the New Rules Mean for Families?
JCWI has found that many decisions have previously ignored the presence of children, either in the UK or living with parents abroad. We hope that this will change now that explicit consideration of the best interests of children is included in the Rules. However, at this stage we do not have the updated Instructions the Home Office gives its caseworkers. This will be essential to understanding how new evidence will be considered.
The new Rules may benefit some families, but the threshold for exceptional circumstances in order for alternative income to be considered remains restrictive. JCWI opposes the income requirement in principle, for pricing many hard-working families out of love. Women, young people, retired people and those living outside of London remain worse affected. These grudging changes, sneaked out at the end of a Parliamentary term to avoid proper democratic debate, reveal a Government that has little respect for the family life of those on low to average incomes.