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.