The amendments made to the Immigration Rules, which were implemented on 9th July 2012, caused significant difficulties for those intending to seek entry clearance or leave to remain in the UK. One of the most controversial changes enforced, related to the requirements of a spouse visa which has made it increasingly difficult for settled spouses in the UK to sponsor their non-EEA national spouses to either join them in the UK or request for further leave under this category.
It can be argued that the rules prior to the changes made on 9th July 2012 were much clearer and straightforward. Some argue that the changes enforced could potentially breach an individuals’ right to a private and family life if they are unable to meet the set of stringent requirements, specifically those who are unable to adequately meet the financial requirement.
What is the financial requirement for a spouse visa?
The financial requirement is a significant part of the application for a spouse visa and it is usually the most difficult to fulfil. Settled spouses in the UK seeking to sponsor their non-EEA national spouse must meet the minimum financial threshold of £18,600 which is commonly referred to as the minimum income requirement. This essentially means that the settled spouse must earn a minimum of £18,600 per annum before tax in order to be eligible to sponsor their spouse.
The financial requirement also applies to settled spouses who need to sponsor their children as well as their spouses. As a result, in order to sponsor children, the settled spouse must earn significantly more than the minimum income requirement of £18,600. In accordance with the current UK Immigration Rules, the settled spouse must earn an additional £3,800 for the first dependent child and £2,400 thereafter for each additional dependent child.
The minimum income requirement is a huge burden on those who struggle to earn this amount as applicants must not only meet the £18,600 requirement for the initial application but also for the extension application. A spouse visa is a five year route to settlement and as such an extension application must be made at the end of the initial two and a half year endorsement. Understandably, the implementation of the minimum income requirement caused hostility and was not welcomed which is demonstrated by the landmark case of MM (Lebanon) & Others v the Secretary for the Home Department  UKSC 10.
The case concerned a Lebanese gentleman who was unable to sponsor his wife from Lebanon as he did not meet the minimum income requirement of £18,600. MM argued that he could, however, meet the minimum income requirement through third party financial support. One of the main points argued was that MM’s inability to reside in the UK with his wife was an unjustified interference with his right to a private and family life, an enshrined right under Article 8 of the European Convention on Human Rights (ECHR).
The judgment concluded that the minimum income requirement was lawful and operated in accordance with Article 8 of the ECHR thus reinforcing the financial requirement in the Immigration Rules. On the other hand, because of the above judgment, there is now an amendment to paragraph 21A of Appendix FM-SE which allows the Home Office to consider other reliable sources of income if refusal of the application based on the applicant’s failure to meet the financial requirement breaches Article 8 of the ECHR. Other reliable sources of income can include third party financial support as well as the potential future earnings of a sponsor.
If you are in the process of submitting a spouse visa application and intend to rely on third party financial support, please contact us and we will assess your financial circumstances in depth to ensure that you are eligible to rely on third party financial support.
Furthermore, the judgment also requires the Home Office to ascertain whether there are any exceptional circumstances in the application being assessed if an applicant is unable to fulfil the financial requirement and refusal of the application would result in unjustifiably harsh consequences stemming from a breach Article 8 of the ECHR. Consequently, implementing the test of proportionality to the Immigration Rules which was a test previously only applied to applications based on provisions outside of the Immigration Rules.
To be able to successfully demonstrate that that the financial requirement is met, applicants are required to provide extensive financial documentation in the correct and accepted format by the Home Office. Financial documents submitted in support of a spouse visa application is deemed to be one of the most crucial aspects of the entire application. It does not help that the Home Office is quite specific with regards to the format of documents and exacts periods that the financial documents must cover. For example, any payslips submitted for a given period to evidence that the minimum income requirement is met must also correlate with the same period for bank statements.
What are the other requirements for a spouse visa?
A further requirement for a spouse visa is that the relationship between the settled spouse and non-EEA national spouse is genuine and subsisting. Applicants must therefore produce relevant documents to evidence that the relationship is genuine.
In addition to the above, the applicant must also meet the English language requirement which entails successfully passing an approved English test at the minimum level of A1 of the Common European Framework of Reference (CEFR). It should be noted applicants will be exempt from the English language test if the applicant:
- is a national of a majority speaking English country; or
- has successfully obtained a degree which was taught or researched in English; or
- has obtained a qualification equivalent to a bachelor’s degree or higher which has been confirmed by UK NARIC.
A final requirement relates to the settled spouse’s ability to demonstrate that there is available accommodation to house both the settled spouse and the applicant. As a result, the applicant must be able to evidence that there are no issues relating to overcrowding.
It goes without saying that the process of applying for a spouse visa is complex and tedious, especially due to strict stance that the Home Office has adopted. It is therefore highly advisable to instruct experienced solicitors who have dealt with spouse visa applications daily as this will ensure that the application is completed accurately and that a favourable outcome is obtained. Contact us and our team of immigration specialists will provide further details on how to successfully obtain a visa spouse without delay.