Following the introduction of Appendix FM and Appendix FM-SE, third party support from the permissible sources of funds was initially excluded. However, the Supreme Court in the case of R (on the application of MM (Lebanon) and others) [2017] UKSC 10,  said that such a restrictive approach was “inconsistent with the character of evaluation which article 8 require”. The Supreme Court categorically pointed out the Immigration Rules should reflect it and rules must be revised. New rules surrounding the minimum income requirements were revised by the Home Office after MM Lebanon’s judgement.

The Immigration Rules now permit reliance in certain circumstances on “a credible guarantee of sustainable financial support to the applicant or their partner from a third party” to show that the minimum income requirement “is met”.

But what does it mean to “meet” the requirement in this context? Must the third party show that they have a separate, ringfenced sum reserved for the couple’s sole use, or is it enough for them simply to earn above the threshold, regardless of expenditure? This was the issue raised in SB v Secretary of State for the Home Department (CA-2022-000256), an appeal recently allowed by consent, after a grant of permission to appeal to the Court of Appeal.

In a recent case before the Court of appeal, wherein the SB sought Permission to appeal, which was originally refused by the Upper Tribunal but granted by the Court of Appeal.

SB’s grounds of appeal argued that in looking for a ringfenced amount, equivalent to the shortfall in the minimum income requirement, the Tribunal was effectively imposing an additional requirement not found in the rules. This was contrary to the principle in R (on the application of Alvi) v Secretary of State for the Home Department [2012] UKSC 33. On reviewing the grounds of appeal, the Secretary of State conceded that the Tribunal’s approach was “questionable” and undertook to reconsider SB’s application. The appeal has been withdrawn by consent and a new decision is awaited.

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