Important Spouse Visa Rules Changes from 10 August 2017
Following the Judgment of the Supreme Court in the case of MM (Lebanon) & Others v the Secretary for the Home Department [2017] UKSC 10, the Home Office had laid down the Statement of Changes in Immigration Rules (Memorandum) before the Parliament on 20th July 2017 in order to give effect to the Judgement and make minor technical changes to the Appendix FM and Appendix FM SE. These amendments will come into force from 10th August 2017.
Important changes from 10th August 2017 are:
- The Home Office must assess circumstances of particular applicant based on the evidence provided by the applicant with a view to grant visa/leave to remain to an Applicant, if they have not met the minimum earning threshold (£18600 for the Applicant; £22400 for the Applicant and one child and so on) as set out in the Appendix FM. The Home Office will consider whether the Applicant is destitute or whether it is in the best interest of the child to grant visa or leave to remain. Therefore, the Home Office must ask itself whether refusing the visa will result in a breach of Article 8 because it will lead to unjustifiably harsh consequences for the applicant, their partner or a child under the age of 18 years.
- .The Home Office will also have to look into the promises of third party financial assistance. This is similar to the provisions in Part 8 of the Immigration rules. However, the third party financial assistance should be ‘credible guarantee of sustainable financial support 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 available to the couple.’ It appears that prospective Applicants could be able to rely on their parents’ or other relatives’ promises of financial supports but these should be sustainable income. It appears that the bank statements and other evidence of guarantors’ income must be submitted with the Applications.
- If leave to enter or remain is granted outside immigration rules under Article 8 as a partner or parent this will be on a 10-year route to settlement (Indefinite Leave to Remain), with scope to apply later to enter the five-year route where they subsequently meet the relevant requirements.
- Some important technical changes also have been made particularly, some provisions to ensure that the partner of a person here with refugee leave or humanitarian protection cannot qualify for Indefinite Leave to Remain before that person has done so; and
- In exceptional circumstances, Applicants will be able to apply for welfare benefits but there should be exceptional circumstances and it will be decided by the Immigration Officer when they consider the applications so that they can place a note on the status or biometric documents.
The Home Office stated that it would publish a guidance, possibly to assist caseworkers and potential Applicants however, some observers comment that these changes are ‘devil is in the details’. Although it appears that these are straight forward amendments, lots of applications may still be refused for lack of evidence and will end up in the Immigration Tribunal, especially when the prospective lay Applicants submit the applications without proper legal advice from a competent immigration adviser. Therefore, again it may take more than a year to have a hearing date at the Tribunal to see whether they are able to join their family in the UK.
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