Before July 2012 the Immigration Rules required that non-EEA family members joining their relatives in this country be able to maintain and accommodate themselves and any dependents. The test was to do so adequately without recourse to public funds.
Since 2006, tribunals interpreted adequacy to mean a level equivalent to that at which UK citizens qualify for Income Support. That test required the analysis to strip out housing costs and tax paid. It also allowed grey areas because it permitted factors such as prospective income into the equation. Inevitably this led to complicated and messy situations so in July 2012 the Home Office introduced a simple minimum income requirement (MIR). A sponsoring partner was required to have a gross annual income of at least £18,600 plus an additional £3,800 for the first non-EEA dependent child and £2,400 for each additional child. This caused huge problems for many families especially those in which the non-EEA national husband/wife/partner was the main breadwinner and I saw several clients whose families were literally split apart by the MIR.
It’s worth reflecting on three points:
- a key aim of the MIR was to ensure that “…the migrant is well enough supported to be able to integrate and play a full part in British society”;
- a survey undertaken by the ONS in 2015 revealed that 301 out of 422 occupations it listed had average earnings of less than £18,600, many of those being in essential public services;
- the current National Living Wage generates full time equivalent earnings of very approximately £15,600, depending of course on the number of hours worked.
The MIR was challenged in the courts but the attempts to overturn it were unsuccessful, largely because the Home Office was able to demonstrate a high level of research and analysis behind it’s figures. The Supreme Court also endorsed the notion of rules which are simple to operate and easy to verify. However the operational guidance to Entry Clearance Officers was found to be unreasonably restrictive giving rise to inconsistency with the tests to be applied for Article 8 rights. That was in February since when approximately 5,000 visa applications have been parked pending new guidance.
That new guidance came into force last week in the form of Paragraph 21A of Appendix FM-SE to the Immigration Rules. This requires decision makers to take into account:
- credible guarantees of sustainable financial support from a third party;
- credible prospective earnings from sustainable employment or self-employment of either the applicant or the sponsor;
- any other credible and reliable source of income or funds available to the family.
Those words “credible”, “sustainable” and “reliable” look set to generate lively debate but for many children the new guidance is a beacon of hope that Mummy or Daddy will soon be able to join them so they can be a family again.