Family Visa & Minimum Income: When Art 8 ECHR Is Involved?

New changes to the immigration rules came into force on the 10th August 2017 in relation to the requirement of minimum income during the evaluation of a family visa application.

The new rules derive directly from the sentence of the Supreme Court in MM (Lebanon and others v SSHD) [2017] UKSC 10 on the minimum income requirement.

Specifically, that judgement has been the turning point for all those applications which would normally be refused if the financial requirement was not met. The so-called 'exceptional circumstances' and 'other sources of income' need to be taken into consideration when the funds to sponsor the applicant are not sufficient according to the Home Office guidance.

The general condition to consider 'other sources of income' is the presence of exceptional circumstances which could or would render the refusal of the application a breach of Article 8, because it could result in 'unjustifiably harsh' consequences for the applicant, the partner or a child under the age of 18.

In the potential hypothesis of harsh consequences ('could render the refusal...'), the applicant must demonstrate to meet the minimum income requirement through any other credible and reliable sources of income, financial support or funds available to the couple. 21 days are normally given to provide these evidence.

Conversely, whenever the harsh consequences appear as an obvious result of the refusal ('the exceptional circumstances would render the refusal of the application a breach of Art 8'), the decision maker must definitely grant the entry clearance.

How to qualify for Art 8 protection

Understanding the Home Office criteria to decide whether there is a potential violation of the Article 8 ECHR is essential to be aware of your immigration status and protect it.

In particular, 'harsh consequences' are those which involve a harsh outcome for the applicant or the family, which is not justify by the public interest of maintaining effective immigration controls.

Some relevant factors are, for example, the ability to lawfully remain in or enter another country, the extent of the relationship involved as well as serious cultural barriers to relocation overseas and the absence of security or government in another country. A significant case would be if the applicant and the partner have a child in the UK suffering from serious mental health or learning difficulties, or the applicant's partner has a genuine and subsisting parental relationship with a child in the UK of her former relationship, and is taking an active role in the child's upbringing.

Ultimately, the new legal approach seems more reasonable and in line the EC of Human Rights as flexibility and a case-by-case consideration is fundamental to not violate the applicant's rights as human being.