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Post-MM Family Migration Rules and What They Mean For Families

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Posted on August 11th 2017

New Rules for spouse/partner visa applications are now in force from 10 August 2017.

* *JCWI’s policy and legal teams will monitor how the Home Office is applying the new law. To assist with our research, if you have had an application for a spouse/partner visa refused since 10 August 2017, please send the refusal letter to policy@jcwi.org.uk. We will keep all details that could identify you confidential. This will help us assess whether caseworkers are correctly applying the new rules and to raise any issues.* *

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Yesterday new Immigration Rules came into force, intended to implement the Supreme Court ruling in R (oao MM & Ors) v SSHD [2017] UKSC 10. Applications which had been put on hold, following the MM judgment in February, will now start to be processed under the new Rules and according to the Home Office’s new  Instructions to its caseworkers, which were published yesterday.

You can find out more about the MM case here. These new Rules reflect two key aspects of this judgment:

  1. That the old Rules unlawfully failed to take into account the best interests of affected children (the basis of JCWI’s successful intervention with the Children’s Commissioner);

  2. That the old Rules would often give rise to decisions incompatible with human rights, because no allowance was made for considering alternative sources of income to meet the spousal income threshold.

These new Rules (which we have previously discussed here) have altered the decision-making process that Home Office caseworkers looking at spousal visa applications will have to go through.

On the one hand, these new Rules and Instructions are an improvement on the old. The best interests of children are given far more weight and there is explicit instruction for this to be a consideration throughout the decision-making process. Furthermore, the very restrictive examples previously given have been replaced with a far broader range of factors to be considered. Many applicants will also have the opportunity for wider sources of income considered.

On the other hand, the process remains onerously complex and continues to place a great burden on those applying to provide evidence to answer every possible reason a caseworker might have to refuse the application. Applicants who cannot show their cases are ‘exceptional’ will apparently not be able to rely on any alternative sources of income they may have. The guidance also gives individual caseworkers, who in many cases may not be adequately trained to conduct a complex balancing exercise, a huge amount of leeway to decide what is and is not ‘exceptional’.

Finally, the MIR itself remains in place. These changes to the Rules do nothing to change the fact that we continue to have one of the harshest family immigration policies in the developed world.  The Government continues to discriminate against lower earners, who should be allowed to love and live with whomever they choose in a system that disproportionately affects women, ethnic minority and those living in poorer regions of the UK. We will continue to campaign to change the Rules, and to resist any further increase. You can help us by writing to your MP about the Rules and sending us their response, and by donating to our work.

Below we outline the changes to the process and what this may mean for families. This does not amount to legal advice and we recommend anyone making an application to seek independent legal advice. Though improved, the process remains highly complex with strict and hard to follow evidence requirements.

Applications under the new process

Best Interests of Children

At every stage of this process, the caseworker is now explicitly told to take into account the best interests of children as a primary consideration. A relevant child is someone under the age of 18 at the date of the application ‘who it is evident from the information provided by the applicant would be affected by a decision to refuse the application’. This means that applicants are expected to provide information about any children who would be affected and to explain why and how.

Research by JCWI’s policy team and academics at Middlesex University has shown that despite international obligations, caseworkers routinely ignored the best interests of children affected by decisions. This is despite the extreme hardship caused to many children separated from a parent because of the Rules. This formed part of our successful intervention in the MM case.

The Instructions make it clear that the interests of children should be considered independently, and not simply as part of the family life of the parents. Nor should the child be blamed for any failures on the part of the parents to comply with immigration controls. It also makes clear that this consideration is not a tick box exercise, and that all factors should be considered, but suggests a long list of factors that may arise pages 65 - 67 of the Instructions). Applicants can also provide any other information they think relevant to the child’s interests rather than being restricted by these lists. The best interests of the child are not the only factor, and don’t trump all other considerations, but the new Instructions do make clear that they should be a ‘primary consideration’.

Ultimately, the caseworker has to decide that the child’s best interests constitute ‘substantive and compelling factors’ for them to allow the application. It suggests that the factors will have to be even more compelling if the applicant and their partner ‘have chosen to commence or continue their relationship in separate countries’ or where people knew that they were on short-term visas, or otherwise had precarious immigration  status. This is concerning, as it devalues loving relationships and implies that people are somehow to blame if they fall in love with an immigrant. It also sits uneasily with the prior instruction that children should not be blamed for their parents’ behaviour.

The Instructions say that caseworkers should consider all of the information and evidence the applicant provides relevant to the best interests of a child. However, it also says that ‘original, documentary evidence from official or independent sources will be given more weight in the decision making process than unsubstantiated assertions about a child’s best interests’. This suggests that applicants who are able to provide letters or reports from official sources, such as teachers, doctors, carers, social workers, or others in the community  who know the child, may fare better than those who only provide their own opinions on what is best for the child. Statements and letters from children themselves can also be included, but it is unclear what weight they will be given.

The way in which this has been phrased is better than in the old Instructions, which quite wrongly asked caseworkers to assume that the “best case” scenario was for the child to live abroad and then to consider reasons why that was not possible.

Meeting the Minimum Income Requirement (MIR)

As before, those applying for a visa as the partner or spouse of a British citizen or settled UK resident are asked to show that their sponsor (the British partner or spouse) earns enough to meet the MIR of £18,600 per annum (the amount increases if the visa application includes any non-British citizen children). The Rules have caused a great many problems for families because of the extremely strict way in which this income is measured. For example, previously you could not take into account the prospective earnings of a foreign spouse, nor any guarantees from other family members that they would provide financial support.

The New Rules & Third-Party Support

Where a British or settled sponsor does not meet the MIR or can’t evidence it in the right way, there are, under the new Rules, three further steps a caseworker is supposed to take before refusing the application. He or she must consider (in order):

  1. whether alternative sources of income should be taken into account;
  2. whether it would be unjustifiably harsh to refuse the application;
  3. whether there are compassionate circumstances that mean the application should be allowed.

Concerns about the new ‘streamlined’ process

Only step 1 is completely new. In the past, steps 2 and 3 were supposed to occur, but the process has now been “streamlined” so that one caseworker goes through every step in this process (before, steps 2 and 3 were dealt with by a separate team in the Home Office, who were supposed to specialise in the complex process of assessing human rights). While the new process could lessen delays, we are concerned that without proper training and support, ordinary caseworkers may struggle to properly assess these claims.

Considering Alternative Sources of Income

If an applicant cannot show they meet the MIR, under the new Rules the caseworker will have to consider whether there are “exceptional circumstances”.

What does exceptional mean here? It does not mean unique or unusual, which is the ordinary English meaning of the word. Instead it means that, having looked at all the information and evidence provided, the caseworker thinks that refusing the application could result in unjustifiably harsh consequences for the applicant, their partner, or any relevant child (in doing so, the caseworker should consider the best interests of any relevant child as a primary consideration as detailed above).

What is supposed to happen

Ultimately, this is supposed to be an implementation of the proportionality test for private and family life under human rights law. The decision maker is supposed to balance the interest of the Government in making the Rules against the Article 8 rights of the applicant, partner and any children to a family life.

The Government’s interests in these cases are listed in the Instructions as:

  1. The proper functioning of immigration controls (JCWI considers that in practice this shouldn’t be free standing, but really depends on 2 and 3 below)
  2. The ability of the applicant and family to finance themselves and not be burden on the public purse;
  3. The ability of the applicant to integrate into British society.
The way the Instructions implement it

The Instructions don’t exactly contradict the above test, but they phrase it in a very convoluted way. Instead of being asked to make an overall “proportionality assessment” they are given lists of relevant factors to consider (these can be found at pages 60 – 64 of the Instructions). Applicants who do not address all of the factors (for example by failing to provide evidence as to why they cannot as a family move (or continue to live) abroad) may find their application refused at this stage.

While these factors do include many that relate to the family’s side of the proportionality argument, such whether the applicant is living in the UK illegally (a factor against) or whether there are barriers to living abroad (a factor in favour) they don’t explicitly list any that could undermine the Government’s side of the balancing exercise. For example, whether the applicant speaks fluent English and has other family members and friends in the UK that would suggest that they are able to integrate well. Similarly, if the applicant’s partner is almost able to meet the MIR, and likely to increase earnings over time, that could suggest that the Government’s interest in protecting the public purse should be given less weight than if the applicant had no money at all. It will be for applicants and their lawyers to be imaginative and exhaustive in considering all the circumstances in the individual case that point to it being disproportionate and thereby unjustifiably harsh to refuse the claim.

Alternative Sources of Income

If the caseworker considers that the exceptionality test above has been met, they can then consider any alternative sources of income. If those sources of income are deemed to be credible, reliable and taken together allow the applicant to meet the MIR, then the application will be allowed. This will be on a 10 year route to getting Indefinite Leave to Remain, not on the 5 year route that applies if you can meet the MIR outright. We do not see the logic in forcing someone who can meet the MIR with alternative sources of funding to wait an extra five years for settlement.

Alternative sources of income are broadly defined and can include: guarantees of third party support; prospective earnings from employment or self-employment for the sponsor or their partner; or any other sources of income or funds which are either available now, or will become available during the period of leave applied for. However, it is for the applicant to persuade the caseworker that these are genuine, credible and reliable. You can see the very detailed list of factors the caseworker will take into account at pages 9 – 14 of the Statement of Changes bringing in the new Rules. 

Other Exceptional Circumstances

If the applicant cannot meet the MIR even after consideration of alternative sources of income, the caseworker has to consider whether refusal would result in unjustifiably harsh consequences for the applicant, their partner, or any relevant child. In doing so, the caseworker should consider the best interests of any relevant child as a primary consideration as detailed above.

This is done in the same way as the exceptionality test described above to decide if alternative sources of income can be taken into account, but appears to be a slightly stricter version. In deciding whether to consider alternative sources of income the caseworker only has to consider if unjustifiably harsh consequences ‘could’ occur.  In this case, the applicant has to prove to the caseworker that these consequences ‘would’ in fact occur in order for the application to be successful.

If the answer is that they would, the casework must grant the application regardless of whether the MIR, or any other requirement, in the Rules has been met or not. Again, this will be on a 10 year route to getting Indefinite Leave to Remain, not on the 5 year route that applies if you can meet the MIR outright.

Compassionate Circumstances

Finally, even if all these tests above have not been met, the caseworker should consider whether there are ‘compelling compassionate factors’ which mean the caseworker should consider granting the application anyway. These are not defined but the example given is when the applicant or relevant family member is suffering from serious ill-health. It is very unclear when caseworkers might use this ground. If they do, the application will be referred to the Referred Casework Unit in London for consideration.

If you are not sure if you meet the MIR or whether you can evidence this in the correct way, we strongly recommend seeking legal advice from an accredited solicitor or advisor.

It is essential that JCWI is able to monitor how decisions are being made. If you have an application refused under these new Rules, please send the refusal letter to policy@jcwi.org.uk . We will keep all personal details anonymous.

 

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