Non-EEA citizens applying for a UK family spouse visa need to understand and meet a large number of eligibility requirements in order to secure a positive decision by the Home Office, one of which relates to minimum annual income. Under this requirement, the applicant and their partner must have a combined income of no less than £18,600, but for applicants and sponsors (i.e. the UK based partner) who don’t quite have enough, cash savings can be used to make up any difference. That said because cash savings must be over £16,000, making up the gap in income in this way is only going to be possible for a limited number of migrants. The reality, therefore, is that if a prospective spouse visa applicant cannot prove sufficient income, they will need to look at ways in which they can satisfy the income requirement rules, or possibly be exempted.
For family visa applications (including spouse visas), the primary source of detailed guidance and rules is contained is ‘Appendix FM’. Appendix FM includes several references to ‘exceptional circumstances’ which may be taken into consideration when deciding whether to grant a family visa. It must be stressed that the bar for these exceptional circumstances is very high, and hence it is important to prepare a robust case backed up with sufficient evidence.
Section GEN.3.1 (1) of Appendix FM states the following:
(a) the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1 (in the context of an application for limited leave to remain as a partner), E-ECC.2.1 or E-LTRC.2.1 applies, and is not met from the specified sources referred to in the relevant paragraph; and
(b) it is evident from the information provided by the applicant that there are exceptional circumstances which could render refusal of entry clearance or leave to remain a breach of Article 8 of the European Convention on Human Rights because such refusal could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child; then
the decision-maker must consider whether such financial requirement is met through taking into account the sources of income, financial support or funds set out in paragraph 21A(2) of Appendix FM-SE (subject to the considerations in sub-paragraphs (3) to (8) of that paragraph).
This confirms that entry clearance officers must take into account other sources of income if an applicant for a family visa does not meet the financial requirement and there are exceptional circumstances. Paragraph 21A (2) states that the following sources of income, financial support, or funds will be taken into account:
A spouse visa applicant who is able to secure another source of income because they do not meet the financial requirement, will still, however, need to prove that refusal would result in ‘unjustifiably harsh consequences.’
To prove that refusal of the spouse visa would lead to unjustifiably harsh consequences and hence would be a breach of article 8 of the European Convention on Human Rights (ECHR) (article 8 confers the right to a private life), a strong case will need to be presented.
Unjustifiably harsh consequences are defined by the Home Office as “ones which involve a harsh outcome(s) for the applicant or their family which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others.”
The Home Office’s family policy goes on to state that “This [meeting the above definition of unjustifiably harsh consequences] involves consideration of whether a refusal would be proportionate, taking into account all the facts of the case and, as a primary consideration, the best interests of any relevant child. The case-law makes clear that where the applicant does not meet the requirements of the rules and has established their family life in ‘precarious’ circumstances (for example, when they have limited leave to enter or remain in the UK), something ‘very compelling’ is required to outweigh the public interest in refusal. Likewise, where family life is formed or exists with a person outside the UK who has no right to enter the UK and does not meet the requirements of the rules for entry clearance, Article 8 does not require that they are granted entry, in the absence of such exceptional circumstances”.
When assessing whether there is an unjustifiably harsh consequence of refusal, the Home Office will take into account a range of factors including whether the couple can relocate to another country, the best interests of any children, and mental and physical illness. As previously stated, the bar which must be met to prove this is unquestionably high. Being separated from family members, or a reduction in the quality of life by having to relocate the family to another country is unlikely to satisfy the requirement.
The Home Office provides some examples of situations which may meet the threshold needed, including if the couple has a child with serious physical or cognitive impairments, or if the applicant’s partner has a “genuine and subsisting parental relationship with a child in the UK of a former relationship, is taking an active role in the child’s upbringing, and the particular circumstances of the case mean that (taking into account the child’s best interests as a primary consideration) it would be unjustifiably harsh to expect the child to relocate overseas with the applicant’s partner, or for the applicant’s partner to do so without the child”.
Before considering whether exceptional circumstances apply, it is advisable to seek legal advice from immigration Solicitors who can fully assess whether you do meet the financial requirement. In some cases, when a full assessment is carried out, other forms of income which had not been considered by the applicant can be used to add to the income of the couple, and hence pass the threshold. This is preferable, where possible, due to the very high benchmark which must be met when proving exceptional circumstances apply.
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