Appendix FM and the Trouble with the Minimum Income Requirement
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
The Minimum Income Requirement of £18,600 per annum per partner plus £3,800 for the first child and £2,400 for each additional child has proven difficult for some applicants. Only sponsor’s incomes are taken into account and third party support is excluded. That results in applications being refused and the Home Office was forced to recognise the possibility that some of the decisions under the Rules would be disproportionate in exceptional circumstances. The leading case was MM (Lebanon)  where it was explained that caseworkers are entitled to take account of the Secretary of State’s policy objectives, but in judging whether they are met they are not precluded from taking account of other reliable sources of earnings or finance. Therefore, following this case, Appendix FM, now reads that where there is evidence from information provided by the applicant that there are exceptional circumstances which render refusal of entry clearance or leave to remain in breach of Article 8 of the European Convention of Human Rights, a decision maker must consider whether the financial requirements are met through taking into account other sources of income.
What are the additional sources of funds that can be considered?
Appendix FM-SE states that it is a credible guarantee of sustainable financial support to the applicant or their partner from third parties, as well as credible prospective earnings from sustainable employment or self-employment of the applicant or their partner.
How to prepare cases where third-party support is needed?
It is important to obtain legal advice in order to satisfy the Secretary of State’s high criteria for what amounts to exceptional circumstances. Relevant matters include best interests of children, inability of the sponsor to live abroad, health concerns and cultural/scrutiny issues. You will need to provide evidence by witness statements, medical reports etc, and seek to replicate the specified evidence for third party support such as pay slips, Bank statements and employer’s letters. You need to provide evidence to the relationship with the third party, their outgoings and any history of support and the reasons for supporting now. If the case is refused, the third party must attend as a witness. Remember third party support is always relevant to the consideration under Article 8 and the issues of proportionality.