Developments in third party financial support for spouse or partner visa applications

The minimum income requirement for a spouse or partner visa is well known. Broadly speaking, applicants must show that their sponsor has a gross annual income of at least £18,600. Alternatively, they can rely on savings or, if they are already in the UK and working legally, on their income.

But what happens if the applicant and sponsor don’t have enough income or savings and instead propose to rely on support from a willing relative or friend who does

The rules now permit reliance in certain circumstances on “a credible guarantee of sustainable financial support to the applicant or their partner from a third party” to show that the minimum income requirement “is met”. But what does it mean to “meet” the requirement in this context? Must the third party show that they have a separate, ringfenced sum reserved for the couple’s sole use, or is it enough for them simply to earn above the threshold, regardless of expenditure? This was the issue raised in SB v Secretary of State for the Home Department (CA-2022-000256), an appeal recently allowed by consent, after a grant of permission to appeal to the Court of Appeal.

The case of SB

SB had arrived on a spouse visa to join her husband of many years, who was present and settled in the UK. Although SB’s husband was earning over £18,600 a year at that point, he later retired. When it was time for SB to extend her leave his pension income was around £11,000 short of the minimum income requirement. The application was refused.

SB quickly reapplied. This time she relied on third party support from the couple’s adult son, M, with whom they had lived rent-free for several years. He owned the house and earned around £60,000 a year. He paid all the bills and the mortgage and bought food and other household necessities.

At a rehearing in the Upper Tribunal (Immigration and Asylum Chamber), SB argued that the difference between her husband’s pension income and the minimum income requirement was more than made up for by M’s contributions. So the minimum income requirement was therefore met. The Upper Tribunal rejected this, holding that M needed to show a “spare” £11,000 of “residual disposable income”. He could not do so because his bank balance sometimes went below this amount and he was occasionally overdrawn. The Tribunal said that overlooking his outgoings and balance would “necessarily risk a situation in which the appellant and her husband have available to them a sum which falls well short of the minimum income requirement”.

An appeal was lodged in the Court of Appeal. SB’s grounds of appeal argued that in looking for a ringfenced amount, equivalent to the shortfall in the minimum income requirement, the Tribunal was effectively imposing an additional requirement not found in the rules.

Once a third party was accepted as credible, there was no reason in principle why their support should not be calculated in the same way as it would for the sponsor. That is by reference to the amount earned. If SB’s husband had been earning over £18,600, the minimum income requirement would be met even if he were living entirely within his overdraft. There was no justification for taking a different approach to a third party with a proven history of supporting SB. As Lord Brown noted in Mahad, such a person is not necessarily any less reliable. Where SB and her husband already lived with M and were covered by the household expenditure, it would be artificial and unrealistic to expect to see an additional unused amount reserved for their sole benefit.

Permission to appeal was refused by the Upper Tribunal but granted by the Court of Appeal, and the case was listed for hearing in early November 2022. On reviewing the grounds of appeal, the Secretary of State conceded that the Tribunal’s approach was “questionable” and undertook to reconsider SB’s application. The appeal has been withdrawn by consent and a new decision is awaited.

The above-described issue is likely to affect many applicants in the future who would turn out to be in similar circumstances, but in light of the consent order agreed, it will have to wait for another case to be decided where a clear court decision would be issued.

Posted on Nov 15, 2022.

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