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Statement of Changes to the Immigration Rules: Appendix FM: A brief overview

Introduction:

The Home Office introduced a Statement of Changes to the Immigration Rules, as of the 20th July 2017. These changes make amendments to Appendix FM and Appendix FM-SE; which outlines the required documentation for family applications. Specifically, the amendments apply to applications which fail to meet the minimum income requirement for entry clearance or leave to remain as a partner or child under Appendix FM or which otherwise fall for refusal under Appendix FM and involve a child under the age of 18 years.

The purpose of the changes is to give effect to the Supreme Court judgment in MM (Lebanon) & Others, handed down on 22 February 2017.

The Supreme Court judgment in MM (Lebanon) & Others upheld the lawfulness under Article 8 of the European Convention on Human Rights of the minimum income requirement for entry clearance or leave to remain as a partner or child under the family Immigration Rules in Appendix FM and Appendix FM-SE. However, the judgment also found that other reliable sources of earnings or finance, beyond those currently permitted under those Appendices, should be taken into account in circumstances where refusal of the application could otherwise breach Article 8. Further, it also decided that Appendix FM did not give direct effect to the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard, as a primary consideration, to a child’s best interests in an immigration decision affecting them.

What has changed?

The changes to the Immigration Rules have inserted new general provisions into Appendix FM in reference to Article 8 of the ECHR, by use of paragraphs GEN.3.1. to 3.3. We will summarise the most important changes below.

  • Article 8 ECHR considerations:

Whilst the Home Office has been loathed to take Article 8 into account, in reference to any arguments made outside of the Immigration Rules, this has now been inserted into Appendix FM in a very vague manner.

Decision makers are now obligated to consider whether there are exceptional circumstances which could render refusal of the application a breach of Article 8 because it could result in unjustifiably harsh consequences for the applicant, their partner or a child under the age of 18 years.

  • Additional funds can now be used to meet the financial requirement:

Appendix FM has been a controversial introduction to the Immigration Rules in 2012, as it introduced a financial requirement for family applications. In a sense, it puts a price on your right to a family life.

Since the new changes, Appendix FM now requires the decision-maker to consider whether the minimum income requirement is met using other sources of income, financial support or funds set out in the new paragraph 21A of Appendix FM-SE.

These will need to be in the form of a 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. This is a significant change to Appendix FM, particularly as this would imply that previously inadmissible evidence will now be acceptable such as:

  • Public funds/benefits of the British partner
  • Employment offer of the applicant
  • Third party funds, such as a promise from the British parents to accommodate the family.

 

  • Section 55 of the Borders, Citizenship and Immigration Act 2009:

Appendix FM will now require the decision-maker, in considering applications under paragraphs GEN.3.1. to 3.3. of Appendix FM, to have regard, as a primary consideration, to the best interests of any child affected. This gives effect within Appendix FM to the Secretary of State’s existing duty under section 55 of the Borders, Citizenship and Immigration Act 2009.

This of course is also quite vague as it would imply that with or without the financial requirement, if the best interests of the child is met, the Home Office would have to allow entry clearance to them or one of their parents.

Conclusion:

The changes to Appendix FM have introduced a more flexible approach to the financial requirement, but also some ambiguity. It will be interesting to see how the Home Office applies these changes to the cases that they decide, particularly in the interests of any children. We should expect that a variety of financial resources are taken into consideration when Appendix FM applications are decided, going forward.

August 2, 2017

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