New Changes to Appendix FM route for family with Children

A brief summary of the new rules coming in on 20 August 2017. The new rules appear to be promising but we will have to see how does Home Office start considering these.

The changes insert new general provisions in Appendix FM (paragraphs GEN.3.1. to 3.3.) which require the Home Office, in the circumstances specified, to consider whether the minimum income requirement is met if there are other sources of income, financial support or funds are set out in new paragraph 21A of Appendix FM-SE are taken into account. The specified circumstances are that the minimum income requirement is not otherwise met and that there is evidence provided by the applicant that there are "exceptional circumstances" which could render refusal of the application a breach of Article 8 because of the ‘unjustifiably harsh’ consequences for the applicant, their partner or a child under the age of 18 years and there is evidence that the child would be affected by a decision to refuse the application.

Paragraph 21A of Appendix FM makes provision as to the other sources of financial support which the decision-maker will take into account in such cases. These are -

a ‘credible’ guarantee of sustainable financial support from a third party;
a ‘credible’ prospective earnings from the sustainable employment or self-employment of the applicant or their partner;
or any other ‘credible’ and reliable source of income or funds available to the couple.

Paragraph 21A also makes provision to considered in determining credibility and reliability of the source of funds.

The changes require the Home Office, in considering an application under the new GEN 3.1 to 3.3 provisions, to have regard, as a primary consideration, to the best interests of any child affected by the decision.

The changes also provide that grants on the GEN 3.1 to 3.3 bases will put persons on the 10-year route to settlement, with scope to apply to transfer to the five-year route if and when they meet its requirements. Changes are also intended to ensure that a child is granted leave of the same duration and on the same basis as their parent and to ensure that the partner of a refugee or person with humanitarian protection cannot qualify for indefinite leave to remain before the principal does.

There is also a drafting, not intended to be substantial, change to the English language requirement for partners or parents.

In a troubling change in paragraph GEN1.11A, destitution as per s 95 of the Immigration and Asylum Act 1999, or particularly compelling reasons relating to the welfare of the child will be required to evade a 'No recourse to public funds' condition.

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