Appendix FM family visa rules changed, a bit

22 September 2017

Appendix FM of the UK immigration rules is the monumental and voluminous part of the rules that deals with non-EEA family visas. It was introduced, to the horror of immigration practitioners, in July 2012.

Whatever it may have achieved in quality it has certainly achieved a lot in quantity. The size of family visa rules was, at a stroke, increased vastly. And Appendix FM has a hugely more prescriptive character then the rules which it replaced.

One of the things that Appendix FM introduced was a highly detailed regime about financial maintenance. It was always the case that if a non-EEA partner wanted to apply to join or stay with their settled partner in the UK they had to show that there would be sufficient funds available for everyday living. (European migrants were dealt with under a different legal scheme.)

But under the older rules this requirement was not very onerous. The applicant only had to show that there would be sufficient funds available to support the parties to the level of basic State benefits. There was something seemingly logical about this. If the Government had decided that x amount of money was enough to live on for the purposes of State benefits then it might be reasonable that would-be migrants would only have to show that they would have money to live on at that level. If it was good enough for those on benefits, why not for migrants?

But the Home Office was not prepared to accept this logic in the longer term - and, we suppose, as part of its general programme of tightening up of the immigration rules. After various deliberations and studies it was decided to require a far higher level of funds for partner visas in the new Appendix FM. The financial scheme is fairly complex but the starting point is that there must be an annual salary of at least £18,600 to support the would-be partner migrant.

As many practitioners pointed out, this was not only higher than basic benefit levels but it was also higher than the national minimum wage. And in addition it unfairly disadvantaged people from outside London because salaries outside London are lower.

It seemed to many that this new rule was not only unfair but that it should be unlawful under human rights family life principles. To put it in a nutshell, there seemed to be no point in falling in love with anybody who earns less than £18,600. What about the right to a family life, as enshrined in the European Convention, which is fully signed up to by the UK?

Not surprisingly this issue eventually reached the courts, and eventually the Supreme Court, in a case called "MM (Lebanon)". (We previously reported about this case on 23 April, "Supreme Court Makes Disappointing Decisions about Family Visa Rules".)

And, as has happened quite frequently in the last few years in various different cases, the court declined to state that the principle of the rule infringed human rights principles. The courts have in recent times largely defended the Home Office’s right to govern immigration control as they see fit.

As the courts have on occasion pointed out, the immigration rules have been approved by our democratically-elected Parliament. It rather looks as though the courts are shying away from impinging upon what might be thought of as the "political" arena and, as is very obvious, immigration law is an intensely political legal field.

But the Supreme Court in "MM (Lebanon") was not quite entirely happy about Appendix FM and it said that some changes needed to be made to the regime. The Home Office has now made and implemented various changes in accordance with the court’s ruling.

Previously there were only very limited circumstances in which funds from a third party could be considered as income for the purposes of partner visas. This rule has now been slightly, but not substantially, softened. The new provisions employ the language of "exceptional circumstances" and "unjustifiably harsh consequences" and state that where such concepts are engaged then third party earnings and prospective earnings may be considered by the decision-maker if the normal income requirement is not met.

And there was also a slight softening of the "no recourse to public funds" provision in the rules and a few other, quite cosmetic, changes.

The Home Office evidently believes that these changes to Appendix FM will be sufficient to satisfy the Supreme Court ruling. Whether they are or not might be determined in future legal challenges.

But one thing is for certain: these changes do nothing to reduce the formidable complexity of Appendix FM, and if you are thinking of applying for a visa under these rules you are well advised to employ competent legal assistance.

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