The Coronavirus pandemic has affected much of our way of life in the UK, as it has across the world. For those involved in the immigration process, these are extraordinarily trying times whether you are making an initial application to enter the UK (the entry clearance stage), seeking to extend your visa, or requesting Indefinite Leave to Remain (ILR).
If you have been affected, and want to know the best way to move forward and secure your visa, contact us on +441483608786 or email us on [email protected]
Although the health implications of Covid-19 are undoubtedly significant, the financial consequences of the virus and lockdown cannot be ignored. A considerable number of people have seen unprecedented changes to their working patterns and in some cases have lost their regular income entirely. A loss of income is always a serious matter. Still, for migrants applying for a spouse or partner visa, it could create major issues given that they must meet what is known as the ‘minimum income requirement’.
In this article, we examine what the minimum income requirement is, whether there is any flexibility during the Coronavirus pandemic, and what you can do to prevent your application from failing to meet the criteria.
What is the financial requirement?
The financial requirement for a UK spouse or unmarried partner visa is found at Appendix FM of the Immigration Rules. It sets out six ways in which the minimum income requirement can be met.
To sponsor a partner under the UK immigration rules, sponsors (and applicants in extension and Indefinite Leave to Remain applications) must demonstrate that they earn a minimum of £18,600 per year, have held at least £62,500 in savings for six months or longer (if relying on savings alone), or show that they meet the required standard of income through a combination of different streams that could include both savings and regular income.
As mentioned above, there are several different kinds of qualifying income that can count towards the minimum income requirement, namely:
- Income generated from the salary of an employed partner or applicant (income usually paid at a minimum fixed rate that may be subject to a minimum number of hours worked within a set period);
- Income from the non-salaried employment of the partner or applicant (income usually paid at an hourly rate or at an amount dependant on the work undertaken);
- Income from self-employment, or from a role as a director or employee of a specified limited UK company;
- Any non-employment income generated by the partner or applicant;
- Cash savings of the partner or applicant over £16,000 that must have been held for at least six months at the point of application; or
- Income from a State (UK or foreign), occupational or private pension of either the partner or applicant.
Income generated from the employment of the applicant will only count if they have the relevant permission to work in the UK, and it is possible to meet the requirement via certain combinations of the above qualifying categories.
It is also important to note that the minimum income requirement is different for those applicants who have children. Alongside the minimum £18,600 annual income requirements for the applicant alone, a further £3,800 is required for a first child, with an extra £2,400 for any additional children. In most cases, an applicant with two children will, therefore, be required to demonstrate that they have an annual income of at least £24,800.
Why is there a financial requirement?
Challenges to the minimum income requirement have already been played out before the courts, and there is an extensive commentary both from legal professionals and the Home Office discussing the legality and reasoning of this requirement.
The official reason for the minimum income requirement is perhaps most clearly discussed in the judgment of the Supreme Court in R (on the application of MM (Lebanon) v Secretary of State for the Home Department  UKSC 10.
In this case, the Court recognised that the intentions of the Home Office and Secretary of State had been to ensure that migrants who apply for entry and leave to remain in the UK via the spouse or partner route have sufficient resources to play a full part in British life without the need to rely on benefits and state support, but also take into consideration any impact it will have to any children involved.
How can you meet the financial requirement?
At face value, the minimum financial requirement and the accepted ways of meeting it seem fairly obvious. What is more complex, however, is the approach taken by immigration officials when working out whether an applicant has reached the required annual income standard. The way your income will be assessed depends on how it was generated (via one or a combination of the six qualifying income types listed above):
- Applicants who have been employed by the same employer for at least six months on a salaried basis will be examined based on the lowest level of annual salary received in the six month period relied upon;
- Applicants who have been employed by the same employer for at least six months on a non-salaried basis are examined on the “total gross income from employment held throughout the 6 month period, divided by six, and multiplied by 12”;
- Applicants who have been employed on a salaried basis for less than six months are examined on their gross annual salary at the date of their application;
- Applicants who have been employed on a non-salaried basis for less than six months are examined based on their total gross income from non-salaried employment in the period prior to application, divided by the number of months they have been employed, and multiplied by 12.
It is also worth noting that, regardless of the income relied upon, the applicant or their partner must show that their income would have satisfied the minimum income and providing the specified documents to support the application.
The minimum financial requirement during Coronavirus
With the coronavirus pandemic casting a huge shadow on people’s earning potentials, it is clear that there is scope for this public health emergency to have a knock-on effect on applications for spouse and partner visas. With businesses prevented from trading and entire industries struggling to remain open, many people face the very real risk of being made redundant, or otherwise being unable to earn if they are self-employed or on a zero-hour contract.
Whilst there is a range of government support packages available to those who are unable to earn at the rate they were before the lockdown, or even at all, whether these will allow an applicant to reach the minimum financial threshold is highly dependent on the individual circumstances of those involved.
The UK Government’s Coronavirus Job Retention Scheme is one such support package that enables employees to continue earning despite being temporarily released from their role, and these earnings could, therefore, be used to demonstrate an income which meets the minimum standard for a UK spouse or partner visa. The scheme allows employers to furlough their staff and apply for a Government grant to cover 80% of their usual monthly wage costs, up to £2,500 per employee per month. In cases where a partner or visa applicant has been furloughed, it seems likely that the Home Office would accept that there has not been a break in their employment – although the Government has not yet issued any clear advice on this point.
In addition, those furloughed employees receiving only 80% of their usual salary may be concerned that they do not currently earn the minimum amount to satisfy the financial requirement even though they would do so when earning their full wage. This is particularly concerning as payments from state benefits such as Universal Credit do not qualify for consideration under the Immigration Rules for the minimum financial requirement.
How to meet the minimum financial requirement during Coronavirus
Even despite the current situation, it is above all vital that any application for a visa extension or indefinite leave to remain is made in time. Failing to do could lead to you becoming an overstayer in the UK, which could leave you at the mercy of the UK’s hostile environment and subject to being removed from the country. This is an issue that is best-tackled head-on, without waiting for an easing of the Coronavirus and the measures introduced to combat it.
If you find that you are unable to meet the minimum financial requirement through a regular source of income from employment, there are options available to you, and you should not dismiss your chances of qualifying for visa status without exploring whether you may be able to reach the threshold in another way. This could include meeting the minimum financial requirement by using a combination of incomes to demonstrate that you meet the criteria, or by arguing that exceptional circumstances apply meaning that your application should not be rejected despite failing to demonstrate earnings at the minimum required level.
UPDATE: 31st December 2020- The Home Office is now providing concessions to those who are unable to meet the financial requirement due to Covid-19 pandemic. The concession is set out below:
Coronavirus (COVID-19) concession
Instruction for handling cases which raise the impact of the 2020 COVID-19 pandemic as grounds for not meeting the minimum income requirement in an entry clearance, leave to remain or indefinite leave to remain applications under the family Immigration Rules.
This guidance sets out the approach you must take over defined periods, when deciding a case, to ensure applicants are not disadvantaged as a result of circumstances beyond their control because of COVID-19.
Income received via the Coronavirus Job Retention Scheme or the Coronavirus Self-Employment Income Support Scheme can count as employment or self-employment income. Where there is evidence of a temporary loss of income due to COVID-19 during the period 1 March 2020 and 1 January 2021 you will apply the following concessions:
• a temporary loss of employment income between 1 March and 1 January 2021 due to COVID-19, will be disregarded provided the minimum income requirement was met for at least 6 months immediately prior to the date the income was lost – this is for a loss of employment income between 1 March 2020 to 1 January 2021 due to COVID-19 an applicant or sponsor furloughed under the Government’s Coronavirus Job Retention Scheme will be deemed as earning 100% of their salary
• a temporary loss of annual income due to COVID-19 between 1 March 2020 and 1 January 2021 will generally be disregarded for self-employment income, along with the impact on employment income from the same period for future applications.
• evidential flexibility may be applied where an applicant or sponsor experiences
difficulty accessing specified evidence due to COVID-19 restrictions
Reach the minimum financial requirement via combinations of income
One route to reaching the minimum financial requirement is by relying on a combination of different types of income. Only certain combinations are permitted, but it is generally possible to rely on a combination of savings, pension income, property income and certain varieties of income from employment.
To rely on savings alone to meet the minimum financial requirement, the applicant would need to hold savings of £62,500. This is a considerable sum of money and raising it could prove difficult, but for applicants who seek to combine savings with another source of income will only need to have £16,000 plus 2.5 times the difference between their income and the minimum financial requirement figure. Any savings relied upon must have been held by the applicant for at least six months prior to the application being made and cannot have been borrowed.
The rules regarding income from pensions are somewhat more relaxed, and gross annual income from a state, occupational or private pension can be relied upon provided that it has been a source of income for at least 28 days before the application is made. Applicants relying on income from a pension should be aware that they will likely need to wait for six months if they are combining pension income with another source of income (savings, for example) to meet the minimum financial requirement.
Income generated from renting out a property can also be used to satisfy the minimum financial requirement in Appendix FM of the Immigration Rules, although the money raised from renting out part of your own home is not eligible. Income from property rental can be combined with both savings and pension income, and so can provide a clear route to reaching the minimum financial requirement for visa applicants with existing property investments in the UK. Similarly, dividends or other forms of income from investments are also recognised as qualifying income for the purposes of the minimum financial requirement and can be combined in much the same way as income from property rentals.
As is clear from the above, there are many routes towards satisfying the minimum financial requirement and provided that spouse and partner visa applicants follow the guidelines (which state, for instance, that certain types of income from employment cannot be combined with cash savings), they may find it possible to meet the criteria through a combination of various income types.
For those applicants who would previously have met the minimum financial requirements, but have been left unable do so following the fallout from the Covid-19 pandemic, it may be possible to show evidence of ‘exceptional circumstances’ which would mean that refusing the application would lead to “unjustifiably harsh consequences” for the applicant and their family. Applicants should be aware that where exceptional circumstances are relied upon, leave to remain would be granted on a ten-year route to settlement rather than the usual five-year route.
If an exceptional circumstances argument can successfully be made, the Home Office will then consider other sources of income that do not fit within the specified list contained within Appendix FM of the Immigration Rules, which could include:
- a genuine and verifiable guarantee of ongoing financial support to the applicant or their partner from a third party;
- genuine and credible prospective future earnings from the employment or self-employment of the applicant or their partner;
- any other credible and reliable source of income or funds for the applicant or their partner, which are available to them either at the date of application or which will become available to them during the period of leave to remain they have applied for.
Whilst arguments relating to other income on exceptional circumstances grounds may provide a flexible approach to meeting the minimum financial requirements, it is important to note that “unjustifiably harsh consequences” for the family must be demonstrated for this to succeed.
An alternative way forward may also be possible for those applicants who can demonstrate a ‘genuine and subsisting parental relationship’ with a child who is under 18 and has lived in the UK for a continuous period of at least seven years before the application date (or where the child is a British national). In such cases, the Home Office must take the child’s best interests into account when making an immigration decision. Similarly, where an applicant can demonstrate a genuine and ongoing relationship with a partner who is in the UK and is British, settled, with refugee status, or with humanitarian protection, the Home Office must take this into account if it can be shown attempting to continue ordinary family life outside of the UK would result in serious hardship.
Expert Support from WH Solicitors
There is no doubt that meeting the minimum financial requirement within an application for leave to remain in the UK is no simple task.
In such a complex area of immigration law, expert legal advice is often needed to ensure that you and your loved ones have the very best chance of seeing an application for leave to remain be approved.
The expert team at WH Solicitors have extensive experience of dealing with the Home Office and stand ready to provide you with clarity and peace of mind. Perhaps you have lost your job, been furloughed or are simply worried about the impact of the Coronavirus on your visa or immigration status. These are difficult challenges to face, but there is help available.
If you face any of these issues, contact our experts on (+44) 01483 608 786 or by emailing [email protected]. We will listen to your side of the story, and help find solutions to your immigration problems no matter how big or small.
The contents of this webpage are provided for informational purposes only and are not intended to constitute legal advice. All information is correct as of the date of publication, and any individual or organisation should be careful to seek qualified advice from a specialist immigration lawyer before acting on any of the topics referenced by this content.