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? Before July 2012, the Immigration Rules permitted this. As Lord Brown said in Mahad (Ethiopia) v Entry Clearance Officer [2009] UKSC 16, there was good reason to do so:

“First, whilst I accept that generally speaking unenforceable third party promises are likely to be more precarious and less easily verifiable than a sponsor’s own legal entitlements, that will not invariably be so. And it would surely be somewhat anomalous if ECOs could accept promises of continuing accommodation and/or employment and yet not promises of continuing payments, however regularly they can be shown to have been made in the past and however wealthy the third party can be seen to be. Are rich and devoted uncles (or, indeed, large supportive immigrant communities such as often assist those seeking entry) really to be ignored in this way? A second consideration, never to be lost sight of, is that it is always for the applicant to satisfy the ECO that any third party support relied upon is indeed assured.”

Appendices FM and FM-SE

Things changed with the introduction of Appendix FM and Appendix FM-SE. They initially excluded third party support from the permissible sources of funds. However, in the case of R (on the application of MM (Lebanon) and others) [2017] UKSC 10, the Supreme Court said that such a restrictive approach was “inconsistent with the character of evaluation which article 8 require”. The court heavily hinted that the Rules should be revised and the Home Office reluctantly made changes.

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. This was contrary to the principle in R (on the application of Alvi) v Secretary of State for the Home Department [2012] UKSC 33.

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.

Comment

This is a good outcome for SB. But from a practitioner’s perspective, it would have been useful to have guidance from the Court of Appeal on third party support in the Appendix FM era. There are no reported cases on the correct approach after MM (Lebanon), and experience shows that First-tier Tribunal Judges vary considerably in their interpretation of what is required. The attitudes of the Court of Appeal in granting permission, and of the Secretary of State in conceding, point to some of the arguments that may be deployed successfully in the future.

Financial independence

SB also obtained permission to appeal on the question of whether her use of the NHS meant she was not “financially independent” under s117B(3) of the Nationality, Immigration and Asylum Act 2002. The Upper Tribunal assumed that it did. But it is arguably unclear whether the definition given in Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58 that “an absence of financial dependence upon the state”, really extends this far. You can read more about this definition here. If it does, then very few people in the UK are financially independent. Even the Immigration Health Surcharge is only a nominal amount calculated without reference to the treatment received. This is an issue which is likely to affect many appellants, but in light of the consent order, it will have to wait for another case.