Part 8 of the Immigration Rules governs “family migration” into the UK. Those provisions prescribe requirements that must be met by family members if they wish to joint their relatives who are present and settled in the UK. In all applications made under this part of the Immigration Rules applicants must prove that they will have sufficient financial resources so as not to become a burden on public funds. In practice this means that people who wish to obtain permission to enter the UK as fiancés, spouses, civil partners, unmarried partners, or other dependant relatives must prove that they will not need to resort to social security benefits.
In most cases the evidence of the financial situation of a UK based sponsor is sufficient to satisfy the UK Border Agency that after arrival in the UK an applicant would be maintained appropriately. In addition, an applicant’s personal resources will be taken into account in assessing his or her ability to support himself or herself in the UK. Applicants can also present evidence relating to their prospects of finding appropriate employment in the UK, once allowed to work by the immigration authorities. However, the problems arise where the applicant’s and their sponsor’s resources are quite limited. The following scenarios may occur:
- Parties have no savings and the Sponsor’s income is low.
The Asylum and Immigration Tribunal looked into the level of funds required in more detail in the case of KA and Others (Adequacy of maintenance) Pakistan [2006] UKAIT 00065. The question raised by the Tribunal was what income level is “adequate” for the purposes of the Immigration Rules and in particular in the context of a Spouse visa application. It was decided that the minimum level of funds available to a couple should be no less than that of the income support level for a couple. At the time if writing this was £102.75. It follows that low income should not automatically result in the refusal of an application, but it is important to prove that it will be sufficient for the couple and they will not need to seek help from the public purse.
- Sponsor entire income comes from benefits.
The fact that the Sponsor is in receipt of benefits does not automatically preclude a successful application for a visa for his or her partner. The Immigration Rules clarify that Sponsors are entitled to benefits in their own right and it is the applicant who cannot be in receipt of benefits. If the applicant’s arrival in the UK would cause an increase in a sponsor’s entitlement to benefits, this would be regarded as recourse to public funds which is not permitted.
- Sponsor has no independent income and is himself or herself supported by a 3rd party.
The Immigration Rules in their current version have been construed to suggest that applicants and their sponsors have to support themselves, from their own resources. Third party support was not allowed AM (3rd party support not permitted R281 (v)) Ethiopia [2007] UKAIT 00058. However, on 16th December 2009 the Supreme Court decided that such interpretation of the rules is not consistent with the purpose of those provisions, which is to ensure an appropriate standard of living for the immigrants and to protect the public funds. The Court decided that applicants can rely on funds provided by third party (family or friends) as long as it is a sufficiently reliable source of income. The burden will be on the applicants to provide evidence, which would persuade the decision makers that the support is not less reliable than income from employment and therefore could prevent the recourse to public funds.
In all cases the assessment whether an applicant meets the maintenance requirement is a complex exercise involving analysis of various factors, including expenditure and future prospects of earnings. It is however a very important factor, after the personal evidence of relationship, and will contribute to the success of a visa application under Part 8 of the Immigration Rules.
