The Home Office must take their own policies into account

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice. 20 May 2024

We assisted an applicant who is a Zimbabwean national and who is married to a British national. The applicant and his wife share two British children. Both children were born in South Africa, but the sponsor has since relocated to the UK with both children.

The applicant claimed asylum in South Africa because of political persecution in Zimbabwe and the family lived together in South Africa. However, whilst living in South Africa, the applicant and the family experienced discrimination as they were foreigners in South Africa and the children suffered discrimination at school for the same reasons. The family struggled with the frequent outbreaks of violence and looting in the area around the house and due to the constant violence in South Africa, the family became more and more anxious.

In 2017, the British sponsor’s visitor’s visa in South Africa was due to expire and whilst she submitted an application to renew her visa, she experienced difficulties in having it renewed. She made a new application, but the problems did not stop. Again and again, she was told to wait until her visa was to be renewed. Eventually, she and the children relocated to the UK.

The hope was that the applicant would be able to join his wife and family in the UK shortly under the Skilled Worker visa, but due to delays in the application process, the applicant’s employer withdrew the application and the sponsor instructed us to assist her in bringing her husband to the UK via a spouse visa application.

The interesting part about this particular case was the fact that we had to rely on third party support. Despite the fact the sponsor had been working in the UK, she did not meet the requirements of Category A as she was not with her current employer for six months or more earning above the minimum income requirement, and she was not earning the right level of income in South Africa before she moved to the UK.

Given the fact that she could not fulfil the financial requirements, we asked the Secretary of State to turn their attention to the case of MM (Lebanon) and Others v SSHD [2017] UKSC 10 where it stated that in circumstances where refusal of the application could otherwise breach Article 8 of the European Convention of Human Rights, the Home Office must take into account other credible and reliable sources of earnings or finance available to the couple in considering whether they meet the minimum income requirements under Appendix FM. In the Judgment of this case, the Supreme Court in reaching their decision, considered the inter-relationship between the Human Rights Act and the Immigration Rules.

On the particular facts of our case, we explained that it was not the case that the couple had a choice as to which country they could live in because of the difficulties the sponsor experienced in extending her visa in South Africa and because of other compelling and compassionate factors. We insisted that the decision maker should give significant weight to the best interests of the British children, because the UK is a party to the United Nations Convention on the Rights of the Child and it was in the best interests of the children for the family to live together.

The sponsor’s father agreed to support the applicant and the sponsor with the application and he confirmed that he was happy to provide the applicant and the sponsor with third party financial support for as long as they needed. We demonstrated his ability to do so by relying on his finance.

We were surprised to receive an email from the Home Office requesting the same financial evidence we had already provided, but also stating that the offer of third party financial assistance is not permitted as a source of income under Appendix FM. We were quick to point out to the Home Office their mistake. We reiterated that the financial circumstances had already been explained and that we already provided the evidence but most importantly, we pointed out the mistake regarding third party support.

We drew their attention to the Secretary of State’s Family Life policy, dated August 2022, which states at paragraph 58 that in light of the Supreme Court Judgment in MM (Lebanon) and Others, the Secretary of State should take into account other credible and reliable sources of earnings or finance available to the couple in considering whether they meet the minimum income requirements.

We reminded the Secretary of State that during the Judgment of MM (Lebanon) and Others v SSHD [2017] UKSC 10, and in the case of Agyarko [2017] UKSC 11, the Court in reaching their decision in these two cases, had to consider the inter-relationship between the Human Rights Act and Immigration Rules and the Secretary of State should give significant weight to the best interests of the children and to the Court’s decision as well as to the Home Office policies.

Needless to say, a positive decision followed 24 hours later.