24 July 2017
It has been exactly five years and two weeks since the UKVI introduced life shattering legislation requiring British citizens and permanent residents seeking to sponsor their spouse, fiancée, unmarried partner and their dependent children for a UK settlement visa to meet the financial requirement. The minimum income threshold was set at £18,600 per annum for couples with no children. If the sponsoring British citizen and their foreign partner or spouse have a dependent child the threshold rises to £22,400. An additional £2,400 is added for any subsequent child.
The result of the 9th July 2012 legislation meant heartache for families who did not meet the mandatory income requirements. Thousands of settlement visa applications have been placed on hold since February 2017 following a Supreme Court judgment, and some applications did not even reach the entry clearance officers desk, due to not meeting the current immigration rules. Especially hard hit were sponsors employed in the northern and southern areas of the UK, outside of London, where the pay gap was unbearable and unfairly placed such sponsors with the decision to move to another country with their foreign spouse.
Even with a starting salary under the threshold with a promise of it rising after probation or a years’ service, would still mean thousands of potential applications likely to be refused on financial grounds. Self-employed sponsors knowing that they would have an influx of clients and could demonstrate they would meet the income threshold, based on upcoming contracts, still would not have a chance of being considered as this would not reflect the accurate income at the time of submission. As a result, literally thousands of families have been separated due to the UKVI financial requirements without the hope of being able to use Article 8 as a defence. However, the new immigration rules of August 2017 stand to give many families hope again.
Support from third parties
On a review of the original Appendix FM (financial requirement) the rules stated that third party financial support would not be accepted. However, the new rules as of 10 August 2017 indicate that in certain exceptional circumstances third party support will be accepted in some cases.
The UKVI will be accepting the following in support of an application:
- a credible guarantee of sustainable financial support to the applicant or their partner from a third party. This can be a family member or close friend who can support the applicant
- Whether there is enough evidence to assure the UKVI caseworker that there will be no change to either the financial assistance available to the applicant and their partner; and
- The relationship between the applicant/sponsor and the third part is not likely to change
Discussing this aspect, the third party, such as a family member or friend, will have to provide verifiable documentary evidence that they are able to support the applicant in the UK and this can take the form of an affidavit which is witnessed / notarised with evidence of the financial support available, e.g. salaried employment or savings. They also need to provide evidence of their financial situation to allow the UKVI entry clearance officer to assess whether the guaranteed financial support will be available to the applicant and sponsor throughout the duration of their settlement visa or further leave to remain (FLR).
Therefore, if a third party promises to provide support, provides an undertaking and financial evidence of support, and yet their employment is only fixed term for six months, then it is highly unlikely that this would be accepted, because the financial support should be available to the sponsor and applicant for the period of the limited leave applied for, i.e. 30 months for a spouse / partner settlement visa or further leave to remain (FLR), if applied from within the UK.
The relationship held between the couple applying for the visa and the third party is another important aspect. If the relationship is that of a parent and child, supportive relationship whereby they have always helped each other and there is also evidence of this, then this relationship is unlikely to change. This should be taken into account when relying on third party support.
Perspective employment of self-employment income
The previous immigration rules indicated that the sponsoring British citizen or permanent resident had to be with their employer for six-months or more at a salary of £18,600 per annum. If the sponsor had recently started new employment they must have a letter from the new employer confirming the income amount and have evidence of earning £18,000 within the last 12 months prior to application. The rules now indicate that the UKVI will consider the following:
- 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 for the applicant or their partner, which is available to them at the date of application or which will become available to them during the period of limited leave applied for.
The new rules indicate that prospective employment or self-employment will now be accepted IF a formal offer of employment has been made, or there is evidence that within three months of the applicant arriving in the UK, self-employment or employment for the sponsor will commence. Unlike in the previous rules, self-employed sponsors can now provide a signed or draft contract for the provision of services or franchise which is on headed paper of the company that the self-employed person will be providing services for. These all contribute to supporting evidence showing that the income will be available and can be relied upon.
The new rules only act as an exception to be considered if the application at first glance does not meet the £18,600 requirement based on self-employment or employment categories directly without considering future earnings or third party assistance. The income requirement has not been dropped, it remains at £18,600 but allows that with assistance from the sources above, the requirements are met, or that if under the UKVI minimum income threshold requirement.
Mortgages as a source of income
Considering the fact that the new legislation is based on exceptions and that the income requirement is still the same, should the application not meet the required financial threshold, it may be possible to rely on income or funds from other acceptable sources such as residential or commercial mortgage. In order to facilitate a UK visa application without hard cash savings available or the relevant income, a sponsor may decide to purchase a property with a mortgage amount or loan to value slightly higher than the sale price of the property in question.
With the loan to value being slightly higher than the property sale price (and after the deposit is applied) will, on application of the mortgage by the lender, permit the sponsor to have extra cash available to meet the shortfall of the income requirements. Subject to the mortgage being provided by a lender that is the FSA equivalent regulated, as such and that with the exceeding loan to value, the mortgage payments are still reasonably affordable by the mortgage applicant for the duration of the limited leave to remain applied for, this additional source of income may be considered by the UKVI caseworkers when making a final determination of eligibility.
Considerations of the HRA 8 and children
The UKVI now must consider that there are some situations where an offshore parent of a child in the UK would be disadvantaged by the decision to refuse the application based on the income requirement not being met. A prime example of this is where parents in the UK must raise their child without the assistance of family or grandparents, and must work because the other parent may not have a UK visa. The parent in the UK obtains employment to care for themselves and the child, but because of not having the support of grandparents or assistance with school runs, school holiday cover etc., it is only practical for the main caregiving parent to resort to lower paying part-time jobs to enable them to care for the child. This automatically affects the possibility of never meeting the income requirement that would enable the offshore parent to come to the UK, and share the financial responsibilities.
This approach was often ignored by the UKVI. However, this story is played out repeatedly, as it is so common, the new legislation considered this. Therefore, it now covers article 8 consideration and such exceptional circumstances, that as in the above a refusal would deprive the rights of a child under 18 by invoking harsh consequences on that child or partner. It will now become mandatory for the UKVI caseworkers to consider the interest of any child under 18.
Access to Public funds
There are also two situations where some benefits will be considered with the employment income as a base figure. The circumstances permitted are if (1) a parent who has a low income is claiming certain benefits, and there are compelling reasons involving the welfare of a child, or (2) where an application meets the grounds for destitution under section 95 the Immigration Act.
Duration of leave to remain when applying under the new rules
It is vital to note that where such exemption applications are made as indicated above. The applicant will be placed on a 120-month route (10 years) to settlement (ILR/Naturalisation), if during this time the sponsor/ applicant meet the income requirement without the four exceptions above, then the applicant can revert to being on the 60-month rout (5 year route to settlement).
This legislation is to be enacted from the 10th August 2017. In the meantime, while we wait for the final areas of the new legislation to be refined as indicated in the statement of changes, we welcome your questions on the upcoming changes. Please complete the online assessment form on the right hand side if you wish to discuss your case with one of our UK marriage visa consultants. We aim to respond within 24 hours excluding weekends and bank holidays.