The Government announced on the 9th of July 2012 a very strict approach to the Financial Provisions in relation to Applications for Spouses under the Immigration Rules (both Entry Clearance and In Country applications). This article describes some of the key features of these new financial rules and the implications they have for families making immigration applications.
I have practised immigration law for many years. The provisions in force prior to the 9th of July 2012, although not perfect, were generally fairer, more flexible and had a common sense approach. In contrast now, the new stricter financial rules mean that Immigration Judges often have to dismiss cases despite being sympathetic to other non-financial aspects.
Key Points
- 1. New Financial Regulations are in place.
- These are biases against lower income families; women; self-employed; lower income regions.
The level of income required was challenged and upheld to be too high in the High Court decision of MM and Ors. The High Court Judge presiding in this case recommended, after considering arguments from the parties, that the level was too high, and the level should be nearer to £13,400. The Judge importantly also thought that income could include potential income in relation to a job offer from abroad in the case of Entry Clearance applications. In addition third party support from satisfactory third parties who had a good financial standing could also be counted. This was a common sense approach relating back to the position as it was before the 9th of July 2012. Unfortunately the Home Office challenged this decision and early in 2014 the Court of Appeal found that that the original level of £18,600 should continue to apply and no job offer or third party support could be considered. As a result many thousands of cases which were undecided, as the Home Office were awaiting the result of the Court of Appeal judgement, were thereafter refused. There is therefore simply no flexibility in relation to the level of income in relation to aThe new rules are harsh in two ways. Firstly, level of gross annual income that employed and self- employed people now have to show is higher at £18,600 per year. There has been much criticism of this level of salary, which outside of London, is usually hard to meet for the majority of the population. Challenges have been made on a number of different fronts including an argument of unequal gender bias- the general national level of salary for women is still lower than for men. The new minimum income threshold therefore discriminates particularly against women. Further challenges and criticisms have been made in relation to young couples who have just started on the employment ladder. Also regional variances in income particularly outside of London.
Secondly, the complexity and inflexibility of the documentation and evidence required, makes the process both labour intensive and full of pitfalls. In employment cases you need to show a large number of documents including six months wage slips and six months bank statements. A common issue is that net wages of the Sponsor (being paid into their bank) needs to be paid at least to the exact threshold amount. This means that if somebody is being paid in cash, as in many jobs in different industries in the U.K, then unless they pay the exact amount on a regular basis into their bank then only the net amount as opposed to the gross amount can be counted. This often means that Sponsors who just manage to meet the £18,600 gross figure are therefore penalised, as only the net amount or the amount which has been banked is counted. I have argued the point many times in front of Immigration Judges, and as explained previously they are very sympathetic, but often say have their hands tied in relation to this position by the rules.
Key Point
Documentation and evidence required under the new regulations are: Complex; Inflexible; Biased against cash-based business
The timely involvement of a competent professional is crucial to case success.Key Point Self-employment, particularly in cash based businesses such as taxi companies or small food outlets, is discriminated against with the new financial rules. A self-employed Sponsor has to show an £18,600 gross profit for the last financial year, they also have to show the bank statements for this financial year. The problem is that often in cash based businesses, such as self-employed taxi drivers, they are paid in cash and therefore this does not leave a full paper trail through bank statements. These self- employed taxi drivers and other small business owners submit their tax returns which are legal and accepted by the UK Tax Authorities. Ironically the Home Office seem to require higher standards of consideration. This point has been argued in front of a number of Immigration Judges who often, due to the Political climate with the General Election in May 2015, lean towards the Home Office position. Another related issue with new businesses is that it takes approximately 18 months before they have their first year tax assessment. This protracted period of time causes hardship in relation to the separation of couples and their children.
Although the new rules are far more difficult to navigate successfully, a competent practitioner will be able to advise and guide you on all potential circumstances in which the rules will be satisfied. For example there are detailed provisions relating to savings, and sale of property as long as specific documentation is provided. Only practitioners with extensive experience of this complex system of financial rules will ensure your case is made as strong as it can be.
Key Point
The timely involvement of a competent professional is crucial to case success.
It is my professional opinion as a legal practitioner, that the new Financial requirements are harsh and onerous on families. I have examined the financial requirements under Appendix FM-SE of the Immigration Rules in detail, and have dealt with many cases at the First Tier and the Upper Tribunals before Immigration Judges. Cases that Clients have prepared themselves, or with poor advice from Representatives (often from abroad), are typically refused. Furthermore it is then very difficult to have these cases overturned before an Immigration Judge. The best outcomes for applications arise when cases are thoroughly prepared well in advance by a competent and experienced Immigration practitioner. At Latif Solicitors we pride ourselves in the applications we prepare in great detail, often working with clients over several months before the application is made in order to maximise our success (without going to appeal). Our advice is to seek a competent, experienced Immigration practitioner with a good track record.They will look at your case, advise you and then thereafter help you to prepare in detail (as we do) your application. At the crux of the applications which we produce is a very detailed covering letter explaining the circumstances of the Client’s case and any potential anomalies. If the application is successful initially, as most of our cases are, this saves the unnecessary cost of an appeal case – which also takes on average six to eight months from lodging to being listed at the First Tier Tribunal.
Although the new rules are far more difficult to navigate successfully, a competent practitioner will be able to advise and guide you on all potential circumstances in which the rules will be satisfied. For example there are detailed provisions relating to savings, and sale of property as long as specific documentation is provided. Only practitioners with extensive experience of this complex system of financial rules will ensure your case is made as strong as it can be.
