Spouse and Partner Applications - Appendix FM of The Immigration Rules

 Following changes to the Immigration Rules in 2012, it has  become more difficult to satisfy the requirements for leave to enter or remain in the UK as the partner of a UK citizen or settled person.

• “Appendix FM” of the revised Rules states that any overseas partner applying to enter the UK must satisfy the new “financial requirement” that their partner has been earning in excess of £18,600 gross per annum in employment they have held for longer than six months.
• The earnings of the applicant themselves will not be taken into account in Entry Clearance cases, although they can be considered where the applicant and their partner are already legally in the UK and are applying for “leave to remain” (eg  switching from another immigration category).
• Cash savings may also be taken into account in meeting the “financial requirement” in some circumstances.  Difficulties may arise where the settled partner has not been in their employment for the required six months, and the financial pattern over the preceding 12 months will then be assessed by the Home Office when considering the application.
• A couple with no employment would need to be able to show that they held £62,500 in cash savings (held for six months) to be able to qualify under the Rules.  This is calculated by disregarding the first £16,000 and dividing the remaining sum by 2.5 to show that sufficient funds are held to cover the next 30 months, i.e. until the next stage of leave has to be applied for.  After 60 months leave in total, provided that the financial requirement is met at every stage, indefinite leave can then be applied for.

The calculations associated with meeting the “financial requirement” can be complex, as only “specified sources” of income are accepted, and the Home Office will not permit certain combinations of those sources of income.

• For example, people applying in the “self-employed” partner sub-category will not be allowed to rely on cash savings to supplement the allowable income to be taken into consideration as this is disallowed under the Rules.
• In addition to the “financial requirement” the applicant must also prove that there will be “adequate accommodation”  “without recourse to public funds”, which the family own or “occupy exclusively”.  One room in a shared house is sufficient to meet this requirement, however  written evidence and the permission of the landlord to occupy the property must be provided.
• The applicant will also need to meet the “English Language Requirement” which means they must either be a national of a listed majority English-speaking country (as defined in Appendix FM), or have passed an approved English language test at CEFR Level A1.  It should be noted that in October 2013 the English Language test requirement will become harder to satisfy as a pass at Level B1 will be required and in addition the applicant must pass the “Knowledge of Life” Test from the date this new requirement is implemented.
• Alternatively, the applicant can qualify by holding a qualification accepted to have been taught at degree level or above in English, however the qualifications that will be accepted in that regard are strictly defined.

Only those applicants over the age of 65, or suffering from a disability, or where exceptional circumstances apply, will be exempt from the English Language requirement of the Immigration Rules.  In practice, this requirement  can be a  major obstacle for partners applying under Appendix FM.

Generally, for the partner application to be successful under Appendix FM, the partner must not fail to meet the “suitability requirements”, which vary slightly depending on whether the applicant is applying for “Entry Clearance” or “leave to remain”.

• For example, the application will be refused if the applicant has been convicted to a sentence of imprisonment of at least four years.   If the sentence was between 12 months but less than four years, the application to enter the UK as a partner will be refused, unless 10 years has passed since the end of the sentence.
• If the sentence was for less than 12 months, it will be disregarded if more than five years has passed, otherwise entry as a partner will be refused.  However, there is a general ground for refusing entry to a partner applicant in addition to these provisions, i.e. if it is decided that their exclusion is “conducive to the public good” by reason of character, associations or other reasons which are deemed to make it “undesirable” to be granted entry clearance.

Failure to comply with procedural requirements of the application process, eg to attend an interview, will also lead to refusal of the application, and refusal is also possible on medical grounds.   The Home Office can now refuse applications on the ground that a sum of £1000 or more is owed to the NHS for treatment formerly received.  If false information or documents have been submitted, or the applicant has failed to disclose any material facts, this can also be a reason for refusing the application.

• If the partner applicant wants to bring a child into the UK with them, they will have to provide evidence that they hold an additional £3800 for the first child, and an additional £2400 for each subsequent child.  These sums are in addition to the “financial requirement” for the partner, as set out above.
• Certain applicants will be exempt from meeting these strict financial requirements, if they are in receipt of certain specified benefits .  Whilst they do not have to meet the strict financial requirement, they still have to show that they can be maintained and accommodated without recourse to public funds.

CASES WHERE THE PARTNER CANNOT MEET THE REQUIREMENTS OF APPENDIX FM

• The position is different for people applying for entry clearance as a partner and those applying for leave to remain as a partner “in-country”.
• “In-country” applicants may qualify for a grant of leave despite not being able to meet some of the requirements, under the “EX.1” (Exception) paragraph of Appendix FM.  They have to show either that they are a partner of a British/settled person in the UK and that there are “insurmountable obstacles”  to their family life continuing outside the UK, or they have to show they are in a parental relationship with a child (under 18) who is British/settled/in the UK for 7 years before the date of the application and that it would not be reasonable to expect the child to leave the UK.

However, Entry Clearance applicants cannot apply under paragraph EX.1.  Also, applicants applying under EX.1 will be placed on a “ten year route to settlement” if successful, instead of the five year route applicable to those who can meet all the requirements.

Other possibilities for those who cannot meet the full requirements of Appendix FM remain an application on grounds of “Article 8” of the European Convention on Human Rights/Human Rights Act 1998, on the basis of “respect for family and private life”. 

Appendix FM is relatively new law, but there have been recent important cases in the Upper Tribunal which have established:

1. Article 8 issues (respect for family and private life) cannot be decided on the basis of the Home Office rules alone (as set down in Appendix FM).  A full assessment of proportionality has to be carried out and all relevant issues taken into account to satisfy the requirement to weigh all factors in the balance:

MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC)

2. The Paragraph EX.1 requirement that a partner demonstrate there would be “insurmountable obstacles” to them leaving the UK is not the correct test to be applied in these cases.  Rather, it is the “degree of difficulty” the partners would experience in being required to relocate which is the proper issue to consider:

Izuazu (Article 8 – new rules [2013] UKUT 00045 (IAC)

3. Finally, for children’s cases, Appendix FM has been deemed insufficient to satisfy the requirement to carry out  an “Article 8 assessment”:

Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC)

The Court in that case expressly stated :

“We share the concerns of the Tribunal in MF that provisions of Appendix FM do not appear to reflect the principle that a primary consideration in immigration decision making is the welfare and best interests of the child”

IF YOU ARE CONSIDERING MAKING A PARTNER APPLICATION UNDER APPENDIX FM, OUR  SOLICITORS  WILL BE HAPPY TO ASSIST YOU IN PRESENTING THE BEST APPLICATION POSSIBLE, WHETHER YOU ARE APPLYING FROM INSIDE OR OUTSIDE THE UK.

THE NEW LAW IS COMPLEX AND WE RECOMMEND THAT YOU SEEK ADVICE BEFORE SUBMITTING YOUR APPLICATION TO ALLOW THE BEST PROSPECTS OF SUCCESS.

WE CAN OFFER REASONABLE FIXED FEE RATES FOR WORK UNDERTAKEN AND WILL GUIDE YOU THROUGH EVERY STAGE OF THE PROCESS.

Please contact Miranda Leate in our immigration team by e-mailing  MLeate@jdspicer.co.uk  or Kam Dhanjal by email, Kdhanjal@jdspicer.co.uk or on 0207-625-5590 and we will be pleased to help.  We offer a flexible friendly legal service and are happy to help you with all your immigration needs.