UK Family Visa Financial Requirement: State Benefits And Entitlements – Work Visas

This post explores the requirements for a Sponsor who wishes to
sponsor family members to join them or remain
with them in the UK, but relies on income from certain entitlements
or benefits received due to disability, illness, injury or caring
responsibilities.

It is important to understand which benefits or entitlements the
Sponsor can rely upon to meet the financial requirements for
sponsorship, and which they cannot.

What Are the Financial Requirements to Sponsor a Family Member
to Come to or Remain in the UK?

The specific financial requirements – or financial income
thresholds – which a Sponsor must provide for an application
under Appendix FM to sponsor family members (at E-LTRP.3.1.) from permitted sources of income
are as follows:-

(a) a specified gross annual income of at least
£29,000

(b) specified savings of:

(i) £16,000; and

(ii) additional savings of an amount equivalent to 2.5 times
the amount which is the difference between the gross annual income
from the sources listed in paragraph E-LTRP.3.2.(a)-(f) and the
total amount required under paragraph E-LTRP.3.1.(a); or

(c) the requirements in paragraph E-LTRP.3.3. being
met, unless paragraph EX.1. applies. (emphasis
added)

Paragraph (c) highlighted above is the paragraph which relates
to income from benefits, and is discussed below.

Note here that permitted sources of income include not only the
various salaried and self-employment incomes, but also statutory or
contractual maternity pay, paternity or adoption pay, and statutory
or contractual sick pay. Other regular income, such as dividends
from investments and income from “any State (UK Basic
State Pension and Additional or Second State Pension, HM Forces
Pension or foreign), occupational or private pension received by
the applicant’s partner or the applicant” (from the
Appendix FM guidance) may also be relied upon, see also the
specific evidential requirements in Appendix FM-SE.

Which Benefits or Entitlements Can Be Used by a Sponsor to Meet
the Financial Requirements?

The specific financial requirements for Appendix FM
applications, which are (briefly) set out above, requires that a
Sponsor provides evidence of earning a set annual income figure or
has a specific amount of savings. This is not the case if a Sponsor
receives certain benefits or entitlements (known as
‘specified’ benefits) – the requirement is that the
Sponsor can ‘adequately maintain and
accommodate’ the family members being sponsored
to enter or remain in the UK.

The ‘specified’ benefits or entitlements which
can be used by a Sponsor to meet the ‘adequate
maintenance and accommodation’ requirements are as follows
(again from Appendix FM):-

E-LTRP. 3.3…

E-LTRP.3.4. The applicant must provide evidence that there
will be adequate accommodation, without recourse to public funds,
for the family, including other family members who are not included
in the application but who live in the same household, which the
family own or occupy exclusively, unless paragraph EX.1.
applies (see below, ‘Exceptional Circumstances’):
accommodation will not be regarded as adequate if-

(a) it is, or will be, overcrowded; or

(b) it contravenes public health regulations.

What Is ‘Adequate Maintenance and Accommodation’?

Maintenance

Before the advent of Appendix FM, all family member applications
involved calculations to establish whether the Sponsor had
sufficient income to support their family members after meeting
their housing costs. These calculations were further clarified by
case law, see KA and Others (Adequacy of maintenance)
Pakistan [2006] UKAIT 00065 This calculation has been
preserved for those who are receiving the entitlements or benefits
set out above.

Briefly, the calculation works as follows:-

Firstly, the total net
weekly income must be calculated (after
tax and national insurance is deducted).

Total weekly housing costs must then
be calculated (rent or mortgage payments, plus council tax).

The total weekly housing costs must then be subtracted from the
total weekly income.

The figure arrived at after the above calculation must be equal
to or greater than the total of the
weekly amounts which would be received by
the Sponsor and his family members if they were receiving income
support. The weekly income support levels can be found
here.

The benefits or entitlements received in the categories
listed above can be used to find the net
weekly income, which is
the figure to be used to begin the above calculation. The fact that
this can be difficult – because some benefits are paid
weekly, some are paid fortnightly, some monthly etc. – has
been recognised by the Tribunal, see Ahmed (benefits: proof of receipt;
evidence) [2013] UKUT 84(IAC). Therefore all ‘workings
out’ should be demonstrated when seeking to rely on these
sources of income to arrive at the ‘adequate maintenance’
figures.

Accommodation

The Sponsor must provide evidence that ‘adequate’
accommodation will be provided for the family member. Proof of
ownership of and/or permission to occupy the proposed accommodation
should be provided, along with proof that the accommodation is in
good repair and does not contravene housing and public health
regulations.. Whether the presence of the family member will amount
to overcrowding is assessed in accordance with the Housing Act
1985, and involves a calculation of the number of people who will
be occupying the accommodation and the number of rooms available
for sleeping (rooms smaller than 50 square feet are not counted).
Children under a year old are not counted, and children aged
between one and 10 are counted as half a person. Age, gender and
whether two people are a couple is taken into account.

What Sources of Income Are Not Permitted?

The following sources of income are not
permitted to meet the financial requirements to
sponsor a family member:

Income from the following sources will not be counted
towards the financial requirement:

• any subsidy or financial support from a third party (other
  than child maintenance or alimony payments, academic maintenance
  grants/stipends or gifts of cash savings that meet the requirements
  specified in paragraph 1(b) of Appendix FM-SE), except where
  paragraph GEN.3.1. of Appendix FM and paragraph 21A of Appendix
  FM-SE apply;




• income from others who live in the same household (except
  any dependent child of the applicant who has turned 18 and
  continues to be counted towards the higher income threshold the
  applicant has to meet until they qualify for settlement);




• loans and credit facilities




• income-related benefits: Income Support, income-related
  Employment and Support Allowance, Pension Credit, Housing Benefit,
  Council Tax Benefit or Support (or any equivalent) and income-based
  Jobseeker’s Allowance;




• the following contributory benefits: contribution-based
  Jobseeker’s Allowance, contribution-based Employment and
  Support Allowance and Incapacity Benefit




• Child Benefit




• Working Tax Credit




• Child Tax Credit




• Universal Credit




• Unemployability Allowance, Allowance for a Lowered Standard
  of Occupation and Invalidity Allowance under the War Pensions
  Scheme




• any other source of income not specified in Appendix FM-SE
  as counting towards the financial requirement

Broadly, the above sources of income are regarded as ‘public
funds’, and the rationale is that a family member making an
application to join or remain in the UK with a Sponsor should not
involve reliance on funds or support provided by the State, and
therefore cannot be relied upon to meet the financial requirements
for sponsorship.

Exceptional Circumstances

Paragraph EX.1. of Appendix FM is indicated
above as a category of applicants (and their Sponsors) who may have
‘exceptional’ reasons as to why they may not be able to
meet the requirements of the Immigration Rules, including the
financial requirements. The relevant guidance gives an indication of the scope of
this provision as follows:-

“Where an applicant in the UK does not fall to be
granted on a 5-year route as a partner or parent because certain
eligibility – financial, accommodation, English language or
immigration status – requirements are not met, they may still
fall for a grant of leave on a 10-year route if EX.1.
applies.”

The above extract from the guidance demonstrates that, for
reasons relating to their vulnerability or the best interests of a
child, Sponsors and family members may be permitted to rely on
certain benefits – such as assistance from public funds with
housing costs, or the need to rely on ‘Third Party’
support, see a previous post here – to meet the adequate maintenance
and accommodation requirements. Applications relying on
‘exceptional circumstances’ are complex, and may require
expert evidence and assistance from legal professionals to make the
representations necessary for a successful application.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.