Sponsor Does Not Meet the Financial Requirement, We are Not Married But Have a Child, What Are Our Options?

We are regularly contacted by individuals from outside of the European Economic Area (EEA) who have a UK-based partner, and have a child with that person, but believe they do not meet the financial requirements for an unmarried partner visa under the family immigration route. While in very limited circumstances it may be possible to consider other routes, the primary application type for this scenario is the family visa. Some applicants who look at the main minimum income criteria may automatically assume they do not meet the requirements, however, with a more in-depth understanding of the rules and exceptions, it may be possible to meet the criteria for acceptance by the Home Office.

The visa options on the basis of having a child will depend on the precise circumstances. If the child is British or has been in the UK for seven years continuously, it may be possible to apply for a family visa as a parent. However, the Home Office rules state that if you are able to apply as a partner of a British or settled person, then you must do so rather than apply as a parent. Having a child, may, however, play an important part in making your case if you do not meet the financial requirements spouse visa, as we will explain later in this article.

What are the minimum income requirement rules for an unmarried partner visa?

According to Appendix FM of the Immigration Rules, the sponsor (i.e. the British citizen or settled person) must show that they have an annual income of £18,600 (before tax). If any children are included on the visa application, an additional amount of £3,800 is needed for one child, and £2,400 for any subsequent children.

What if the sponsor earns less than the minimum income requirement?

Many applicants and sponsors automatically assume that if they do not have a salary of £18,600, they will not be able to apply for a partner visa. For those who are struggling to meet the required financial threshold, the Home Office guidance does provide a number of options which may assist. Section 4.1 of the guidance document ‘Appendix FM 1.7: Financial Requirement ’ outlines all of the possible ways of meeting the financial requirement, these are as follows:

• Category A: Income from salaried or non-salaried employment of the UK-based partner (and/or the applicant if they are in the UK with permission to work). Must have been with current employer for six months or more.
• Category B: Income from salaried or non-salaried employment of the UK-based partner (and/or the applicant if they are in the UK with permission to work), if not with current employer for six months or more.
• Category C: Non-employment income, e.g. income from property rental or dividends from shares.
• Category D: Cash savings of the applicant’s partner and/or the applicant, above £16,000, held by the partner and/or the applicant for at least six months and under their control.
• Category E: State (UK or foreign), occupational or private pension of the applicant’s partner and/or the applicant. This is referred to as Category E.
• Category F / G: Income from self-employment, and income as a director or employee of a specified limited company in the UK, of the partner (and/or the applicant if they are in the UK with permission to work).

Combining income

For those who do not meet the minimum salary, it is possible to combine different sources of income. The rules in this area is complex, and hence it is advisable to engage the advice of immigration lawyers who will be able to work out whether you do meet the financial requirements. Ways in which income may be combined are as follows:

• Under category A and B, if the sponsor’s income is too low, it is possible to combine this with income from category C, D and E (non-employment income, cash savings and pension)
• Category C income can be combined with income from category A, B, D, and E.
• Category D income can be combined with income from category A, B (only for current income), C, and E.
• Category E income can be combined with income from category A, B, C, and D
• Category F or G income can be combined with income from Category A, C or E, but only when it covers the same period of time, and each source of income was available for the whole period.

In some cases, combining income in this way can allow sponsors and partner visa applicants to meet the minimum income threshold. If not, the next option is to look at ‘exceptional circumstances’.

See also ‘Combining employed and self-employed income for a spouse visa application’ here.

Exceptional circumstances

Back in July 2017, the Home Office made a series of changes to the family/partner visa minimum income policy on the basis of a landmark case at the time, MM (Lebanon) & Others v the Secretary for the Home Department [2017] UKSC 10. One of these changes was to require the consideration of “unjustifiably harsh consequences” of refusing the application; “the decision-maker must consider whether refusal of the application could breach ECHR Article 8 because it could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child….The decision-maker must take into account, as a primary consideration, the best interests of any relevant child”. This means that if it can be shown that there would be “unjustifiably harsh consequences”, additional sources of income may be considered, including:

• a credible guarantee of sustainable financial support to the applicant or their partner 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

The test for “unjustifiably harsh consequences” does have a high benchmark, and factors such as the ability of the family to safely relocate to another country, and the best interests of any children will be taken into account, as will the impact of a mental or physical disability or of a serious illness which requires ongoing medical treatment.

Final words

If you believe you do not meet the minimum income requirements for an unmarried partner visa, the best course of action is to have this fully assessed by immigration Solicitors who will be able to confirm if this is the case, or whether you can rely on other sources or exceptional circumstances. In many cases, it is possible to reach the requirement when a full understanding of the rules is applied.

Related Article: Read also ‘A guide on document and requirements needed for a UK spouse visa’