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Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 1776

This was a case concerning 2 separate applications for leave to enter as a spouse of a British citizen and a settled person where they did not meet the minimum financial income.

They subsequently, appealed to First-Tier Tribunal where their appeal was upheld. The arguments and the judgement are outlined below.

First Appeal

The first appeal concerned a Pakistani national who applied for leave to enter as a spouse of a British national, his wife. The couple got married in Pakistan in November 2012 and the husband applied in December 2012 for his visa.

The wife was not in employment for 12 months preceding his application but managed to find a job with Derbyshire Care Service 4 months before the husband submitted his application.

Initially, his application was refused by the Entry Clearance Officer (ECO) on the basis that the sponsor’s income did not meet the minimum income requirement of £18,600 in the 12 months preceding the application. The ECO only calculated the 4 months of payments the sponsor was able to provide which equated to £16,460.

However, the tribunal upheld the appeal following the decision in MM [2013] EWHC 1900 (Admin), where the sponsor could not meet the minimum financial threshold. In MM, because they could not enjoy married life in the same country of residence as the sponsor, the court ruled that this interfered with their right to enjoy private and family life and was disproportionate to the Human Rights Act. Thus, the court took in to account the full background of their case and that her annual salary factually mounts to £22,000, above the minimum financial threshold.

Crucially, in the case of MS [2018], the appeal was upheld on the argument that uprooting the British spouse and her children to Pakistan would be an unlawful interference with Article 8 Right to respect for Family and Private life of the European Convention on Human Rights and Fundamental Freedoms.

Second Appeal

The second appeal concerned a Jamaican national and her son. They applied as the spouse and dependent of a settled person in the United Kingdom.

Initially, her application was refused on the basis that her sponsor was unable to meet the minimum financial requirement as the sponsor did not provide proper evidence of all his income.

The court considered the ruling in MM [2013] and ruled that the sponsor was able to adequately provide for his spouse and child after providing additional evidence, therefore the refusal would be disproportionate on Human Rights grounds.

On the balancing exercise, the court will weigh up whether the sponsor can show the level of support required according to their circumstances. Subsequently, the appeal was allowed on the basis that the applicants have available to it support required for a couple and a child.

Crucially, the test is of overall proportionality assessment under Article 8, Right to respect Family and Private life. This is further emphasised when the court made references to the case of SS (Congo) which concerned a wife who was Congolese and wished to apply for leave to enter as a spouse of a British citizen. But the sponsor did not satisfy the minimum financial requirement. The wife suffered a miscarriage which left her traumatised and needed to be reunited with her husband in the UK. The Judge ruled that upholding the proportionality test under Article 8, this amounted to compelling circumstances requiring a grant of leave to enter.

As a conclusion, the Judge also emphasised in the case of MS [2018] that as both applicants would have satisfied the minimum financial threshold if they waited until their income was fully satisfied then it would have been both time-efficient and cost-effective to submit a fresh application instead of making an appeal.

Should you require any advice on your entry clearance application as a spouse of a British citizen or settled person, please do not hesitate to contact us at Barar & Associates via email at info@bararassociates.com or telephone at 0207 487 8370.