- BY Alex Piletska
Sponsor changing job is not a reason to refuse a spouse visa
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If you meet the financial requirements of Appendix FM at the date of application but your sponsor then leaves their job, do you still qualify for a spouse visa? Yes, the Upper Tribunal found in Begum (employment income; Rules/Article 8) [2021] UKUT 115 (IAC).
Facts of the case
Ms Begum, from Bangladesh, applied for entry clearance as a spouse in February 2018. She evidenced her British husband’s employment income in the six months leading up to the date of application, which she relied upon to meet the financial requirements of the route.
The Home Office refused Ms Begum’s application in June 2018 on the ground that she did not meet the financial requirement. Specifically, officials claimed that she had not submitted a letter from her husband’s employer, that there were discrepancies between the salary stated on the payslips and the amount he was paid into his bank account, and that they were unable to reach his employer when they called him to verify this information. Ms Begum appealed.
By the time the case was heard, in May 2019, Ms Begum’s husband had left this job and become self-employed. The First-tier Tribunal found that Ms Begum did meet the requirements of the Immigration Rules at the date of the application, so the Home Office had been wrong to turn it down. But Judge Gibb also held that he had no choice but to dismiss her appeal despite that because of “the change in the sponsor’s circumstances since the date of decision”, i.e. the fact that the employment on which Ms Begum relied no longer existed.
The relevant date is the date of application
The Upper Tribunal allowed Ms Begum’s appeal. When it comes to meeting the financial requirement, it found, the Immigration Rules are drafted with reference to the date of application — not the date of decision or any other date in the future. As such, the finding by the First-tier Tribunal that all the requirements were met at the date of application meant that refusing her entry clearance was disproportionate, even though the sponsor had since left the job in question.
It is important to note that the decision distinguishes between rules that are formulated with reference to the date of application, such as the financial requirement under Appendix FM, and those that are worded in an “ambulatory” (forward-looking) manner, such as the requirement that the applicant provide evidence that there “will be” adequate accommodation.
The decision contains a useful quote (in paragraph 28) about how the Immigration Rules should be interpreted:
An individual who might objectively be regarded as worthy of leave to enter or remain – and who may under the previous regime have merited the exercise of discretion in their favour – can nevertheless now be denied leave, as a result of the mechanistic operation of the [Points Based System]. The PBS rules do not fall to be judicially re-written, in order to favour such an individual. It seems to us that the present case is an example of the other side of this coin. The respondent has decided that earnings from employment will be determined wholly by reference to the position up to (but not beyond) the date of application. That is her choice. But, just like the unsuccessful individuals in the cases just mentioned, she cannot expect the Tribunal to interpret the Rules in order to give her the best of both worlds.
Basically, live by the sword, die by the sword (of inflexibly applying the letter of the Immigration Rules).
No difference between entry clearance and leave to remain
Perhaps of equal importance to immigration lawyers, the Upper Tribunal confirmed that where there is a finding that an applicant meets the Immigration Rules, the Home Office cannot point to the importance of maintaining immigration controls in order to nevertheless refuse the application in the absence of any exceptional countervailing factor, such as a subsequent discovery of deception.
This principle was already established in cases that concerned leave to remain applications, such as OA and Others (human rights; “new matter”; s.120) Nigeria [2019] UKUT 65 (IAC), but it is still helpful to have confirmation that it applies equally to entry clearance applications.
(1) In an application for entry clearance as the partner of a person present and settled in the United Kingdom, the financial requirements in E-ECP.3.1 of Appendix FM to the Immigration Rules regarding income from employment relate to the period of 6 months prior to the date of the application. There is no requirement to continue in the relevant employment (or some at least equally remunerative employment) thereafter.
(2) The significance of P being found by the Tribunal to satisfy a provision of the Immigration Rules, which the Secretary of State considered P did not satisfy, and which caused her to refuse P’s application, applies to entry clearance cases, as it does to cases where P is in the United Kingdom. Provided that ECHR Article 8 is engaged, the Secretary of State will not be able to point to the importance of maintaining immigration controls as a factor weighing in her favour in the proportionality balancing exercise, so far as that factor relates to the particular rule that the Tribunal finds was satisfied: OA and others (human rights; “new matter”; s. 120) Nigeria [2019] UKUT 65 (IAC).
(3) There may be situations in which, even though it is found on appeal that P meets the requirement of a particular rule, which the Secretary of State wrongly concluded P did not meet, and which led her to refuse the application, circumstances have, nevertheless, come to light that mean the Secretary of State can legitimately invoke some other provision of the Rules, in order to deny P entry. One can also envisage an extreme case (eg. forced marriage) where, whether or not the Rules make express provision for it, the true position is such that the very purpose of Article 8 would be subverted by facilitating P’s entry. Or, more generally, it may appear that deception has been employed or that the applicant has behaved in such a way that public policy requires their exclusion.
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One Response
Firstly, thank you for this excellent and helpful article and caselaw. In Part 1 of the Immigration Rules at rule 27 for Entry Clearance it states, “An application for entry clearance is to be decided in the light of the circumstances existing at the TIME OF THE DECISION (my caps to highlight)…”. My understanding is that this applies to everything except the age of child who may have turned 18. How does the above Begum ruling sit with this rule? Take the case of someone being an employee at the date of the application, but is self-employed at the time of decision and, obviously no accounts made up, and/or just not generating sufficient minimum income requirement (MIR). At the time of application MIR is met, but not at time of decision. Am I missing something?