How to avoid the minimum income requirement for partners under spouse and family visas

Since the initial announcement, we have learned that the increase will be staggered with the first increase being to £29,000 and will come in spring 2024. The next level of £38,700 will be reached in 2025.

We do not yet have the draft immigration rules that will make the increase law but it is important to start thinking now about how couples can avoid the new minimum income requirement.  

Below we look at the various ways that applications can be made while avoiding the need to meet the minimum income requirement.

Apply before spring 2024

We have been told that the new minimum income requirement will be introduced in spring 2024, though we do not know the exact date. 

It may seem obvious but if a couple meets the requirement now but will not do so in the future, they should look to submit an application before the rule change.

Remember paragraph EX.1

Currently the relevant requirements are set out in Appendix FM and Appendix FM-SE to the immigration rules. Paragraph EX.1 of Appendix FM creates an exception for in-country leave to remain applications only. This includes an exception regarding meeting financial requirements.

Its first limb allows for an exception to be made where there is a British citizen child or a child who has lived in the UK for seven years and it would not be reasonable for that child to have to leave the UK. 

Its second limb allows for an exception to be made where there are insurmountable obstacles to the family life continuing in another country. 

Use exceptional circumstances under paragraph GEN to broaden sources that can be used to meet the financial requirement

Paragraph GEN 3.1 of Appendix FM can be used by those applying out of country as well as in-country. This does not avoid the minimum income requirement but it allows for a wider range of sources to be used in meeting the requirement if there are exceptional circumstances which could render a refusal a breach of article 8 of the European Convention on Human Rights. 

Exemption where sponsoring partner in receipt of certain welfare benefits

If the sponsoring partner is in receipt of certain welfare benefits, then the test is not the minimum income requirement but whether there is adequate maintenance and accommodation without recourse to public funds. This is a very different test which involves an assessment of whether the family would have more than the equivalent British family reliant upon income support. This is usually a substantially lower threshold than the new financial requirement. 

Conclusions

We must use the tools available to enable families to be together even if they cannot meet the minimum income requirement.

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