Exceptional circumstances in a spouse or partner visa application under Appendix FM

In other posts we have looked at the requirements to be satisfied by a spouse or partner who seek leave to enter or remain. Under Appendix FM, the sponsor can be a British citizen, a settled person, a refugee, or someone with humanitarian protection, limited leave under Appendix EU, Appendix ECAA or earlier provisions regarding Turkish businesspersons.

But what can be done if someone is unable to meet the financial or other requirements of Appendix FM?

The immigration rules consider cases where the sponsor is unable to satisfy one or more of the requirements, and provide that leave to enter or remain can be granted if there are exceptional circumstances.

The meaning of “exceptional circumstances” can be found in various paragraphs of the rules, which we will look at in later sections. Basically the applicant must show that if the Home Office refuses to grant leave to enter or remain, this would be a breach of the applicant’s rights under Article 8 of the European Convention on Human Rights (the right to private and family life), because it would result in “unjustifiably harsh consequences” for the applicant, their partner, child or another family member involved.

This test is a high one. It is not enough to demonstrate that one’s circumstances are unusual or difficult, or that one almost meets the requirements of the Rules. It is necessary to prove that the consequences of a refusal would be disproportionate and not justified by the public interest, such as that in maintaining effective immigration control.

“Exceptional circumstances” doesn’t exempt you from all the rules

To succeed under the immigration rules, an applicant must satisfy suitability and eligibility criteria. Some of these boxes must be ticked even when pleading exceptional circumstances.

Suitability criteria look at the applicant’s character and reasons why they should not be admitted to or allowed to remain in the UK. The majority of these requirements must generally be met even if one makes an application based on exceptional circumstances.

In this post, we will not look at these criteria in detail. Suffice to say that the suitability requirements to obtain leave to enter the UK or leave to remain are quite similar, and mainly look at whether the applicant is subject to an exclusion or a deportation order or has been convicted of an offence for which they have been sentenced to imprisonment.

In these cases, where the presence of the applicant in the UK is deemed to be not conducive to the public good, applications will be refused.

There are other suitability requirements that, if breached, do not necessarily lead to a refusal, and the decision would depend on the circumstances of each case.

The eligibility requirements look at:

• the relationship between the applicant and the sponsor,
• the applicant’s status in the UK (in case of an application for leave to remain),
• maintenance,
• accommodation, and
• knowledge of the English language.

Applicants from countries listed in Appendix T must also undertake a tuberculosis screening in applications to come to the UK.

By making an application on the basis of exceptional circumstances, it is still necessary to show that the relationship between the sponsor and the applicant is genuine. The immigration status, financial and English language requirements don’t need to be satisfied. This is particularly important in case of unmarried partners, who need to provide more evidence compared to spouses.

The immigration status, financial and English language requirements don’t need to be satisfied in the presence of exceptional circumstances.

The immigration rules

The immigration rules deal with exceptional circumstances in two parts of Appendix FM, which you can find online here. The first is in the dropdown section labelled Exceptional circumstances, containing paragraphs Gen 3.1-3.3. These can be used for both applications for leave to enter and in applications for leave to remain.

The second is in Section EX: Exceptions to certain eligibility requirements for leave to remain as a partner or parent dropdown option. This has two paragraphs, EX.1 and EX.2, which are for applications for leave to remain only.

Paragraphs Gen.3.1-3.3: applications for leave to enter or remain

Exceptions from the financial requirements

There may be situations where the sponsor and the applicant cannot meet the financial requirements for Appendix FM.

Normally, applicants must prove that they meet the financial requirements, which include the infamous “minimum income rule”, by sending the Home Office specified evidence (listed in Appendix FM-SE). The minimum income to sponsor a spouse or unmarried partner is £18,600 for those already in this route before 11 April 2024, or more in the presence of children who are also applying. For those making their first application in the partner route on or after 11 April 2024, the minimum income requirement is £29,000 with no additional requirement where there are also children applying.

If they can’t, paragraph GEN.3.1(1)(b) comes into play. It states that when

it is evident from the information provided by the applicant that there are exceptional circumstances which could render refusal of entry clearance or leave to remain a breach of Article 8 of the European Convention on Human Rights, because such refusal could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child; then

the decision-maker must consider whether such financial requirement is met through taking into account the sources of income, financial support or funds set out in paragraph 21A(2) of Appendix FM-SE (subject to the considerations in sub-paragraphs (3) to (8) of that paragraph).

Translated into English, this means that if the sponsor’s income (or the sponsor and the applicant’s income if the applicant is legally in the UK) is below the required threshold or is derived from sources other than those specified in the Rules, the couple can rely on other sources of support. These other sources of support are listed at paragraph 21(A)2 of Appendix FM-SE, which is the set or rules that list which specific evidence must be provided in applications made by family members.

The other acceptable sources of income are:

a. a credible guarantee of sustainable financial support to the applicant or their partner from a third party;

b. credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or

c. any other credible and reliable source of income or funds for the applicant or their partner, which is available to them at the date of application or which will become available to them during the period of limited leave applied for.

However, the Home Office will consider these other sources of funds only in cases where refusal of leave would result in “unjustifiably harsh consequences” for the applicant and their family.

So having an uncle who is willing to offer financial assistance is not enough in all cases. One also has to show that a refusal would have pretty serious consequences for the parties involved.

The word “credible” introduces a subjective element in the requirements. This means that the Home Office has to be satisfied that the declared source of income is likely to be genuine and effective. To prove this, is it important to submit good documentary evidence.

Example

Jabba wants to bring his wife into the UK from abroad. He cannot meet the financial requirement because he has only been working for two months in the UK. He works at The Pizza Hut earning £17,000 per annum.

Previously Jabba was living off his savings which have run out. Jabba spent his last savings on a luxury cruise where he met his wife. But Jabba’s uncle Tiure is willing to provide financial support and provides a written undertaking to that effect, which is sent to the Home Office as part of Jabba’s application, together with a copy of Tiure’s British passport,  bank statements showing substantial funds and a statement confirming his relationship with Jabba.

The Home Office does not dispute that Tiure would be able and willing to provide support. However the visa application is refused because there is insufficient evidence to prove that such refusal would cause unjustifiably harsh consequences for Jabba or his wife.

Exceptions to other requirements

What if the applicant and the sponsor meet the financial requirements but not some other element of Appendix FM? In this case, they would rely on paragraph GEN.3.2. Whilst paragraph GEN.3.1 deals with financial requirements only, paragraph GEN.3.2 provides an exemption from other requirements.

Paragraph GEN.3.2.(2) states that when the requirements of Appendix FM are not met:

[T]he decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.

In cases where paragraphs GEN.3.1 or GEN.3.2 apply, one has to look at paragraph GEN.3.3, which states that the Home Office

must take into account, as a primary consideration, the best interests of any relevant child.

“Relevant child” means a person who:

(a) is under the age of 18 years at the date of the application; and

(b) it is evident from the information provided by the applicant would be affected by a decision to refuse the application.

Therefore in cases involving children, the Home Office has to take the child’s best interests into account when making a decision.

The insertion of paragraph GEN.3.3 in Appendix FM means that, according to the Home Office, the immigration rules now provide a complete framework for consideration of applications based on Article 8 ECHR grounds, and that, having considered the right to private and family life of the applicant and other relevant family members (especially children), an application should be granted only if a a refusal would result in “unjustifiably harsh consequences” – a high threshold.

However, in an appeal against a refusal of an application under Appendix FM, the immigration tribunal would have to consider the proportionality of any decision, striking a balance between the applicant’s private and family life and the public interest in maintaining immigration control.

Paragraph EX.1: applications for leave to remain only

Exceptional circumstances in applications for leave to remain are regulated by paragraph EX.1 of Appendix FM.

Paragraph EX.1(a) deals with cases where the applicant has a “genuine and subsisting parental relationship” with a child who is under 18, in the UK and is British or:

has lived in the UK continuously for at least the 7 years immediately preceding the date of application.

In these circumstances, the Home Office should grant leave if:

Taking into account [the child’s] best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK.

Showing what is “reasonable” is somewhat easier than showing that there are exceptional circumstances in cases where children are not involved.

Paragraph EX.1(b) regulates cases where:

the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.

The test here is higher. It is not sufficient to show that it would not be “reasonable” to relocate abroad, but there must be “insurmountable obstacles” that render family life abroad pretty much impossible.

Paragraph EX.2 defines insurmountable obstacles as:

the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.

Example

Obi is a British national of Indian origin. He has been living with Padme for three years and they have a six-month-old baby. Padme is an overstayer from Zimbabwe. Obi has another child who is ten years old named Ben. Ben has special needs, and lives with Obi and Padme.

Padme submits an application for leave to remain as the unmarried partner of Obi, and relies on paragraph EX.1 of Appendix FM because she has no valid leave.

Padme submits that she cannot go back to Zimbabwe because she looks after Ben so that Obi can work. She also points out that Ben requires medical treatment which would not be available in Zimbabwe. Finally, Obi and Ben are not familiar with Zimbabwe at all, and it would be very difficult for them to integrate.

The application is successful and Padme is granted leave to remain.

Other cases where it should not be too difficult to meet the threshold are for example, cases where the couple have different religions and would be forced to go to a country where worship in a given faith is banned or discouraged by the authorities there,

Conversely, if the couple share a common heritage, the Home Office may conclude that relocation and integration abroad could be relatively straightforward.

OK, but what does “exceptional circumstances” actually mean?

Unfortunately, it is very difficult to say which cases will succeed in an exceptional circumstances application, as it really depends on one’s specific situation.

Some guidance is provided by the Supreme Court, in the case of Agyarko [2017] UKSC 11, which considered the appeals of two women who had entered the UK as visitors and overstayed. In both cases they had British partners, and both appeals were dismissed because the women could not demonstrate that their cases raised “exceptional circumstances”.

The court concluded that Appendix FM is compatible with Article 8 of the ECHR and it is up to the Home Office to decide what “exceptional circumstances” and “unjustifiably harsh consequences” mean.

Ultimately, it is always a balancing exercise where on one side lies the applicant’s interest in remaining in the UK with their family and on the other the public interest to remove anyone who does not have a valid visa.

Therefore, if one does not tick all the boxes, it is crucial to provide as much evidence as possible to show that being removed from the UK would be a disaster not only for the applicant, but also for their family members.

Mere inconvenience would not cut it. Having a mortgage in the UK, or a job or some ill relative is probably insufficient. The same goes in cases where removal would bring about economic hardship.

The fact that one entered into a relationship while having no visa is unforgivable in the Home Office’s eyes. Being British does not give the right to be in the UK with any partner, and love is not enough to overcome the need to maintain effective immigration control.

What kind of immigration status do you get?

If an application is successful, the applicant will be granted leave to enter for 33 months or leave to remain for 30 months, but they will only qualify for settlement (indefinite leave to remain) after 10 years. By contrast, applicants who satisfy the requirements of the rules without having to rely on exceptional circumstances can apply for settlement after five years.

Applicant will typically be granted their leave subject to the ‘no recourse to public funds’ condition, but it is possible to apply to have the condition lifted.

If an applicant is granted leave to enter or remain under the “10-year route” they can switch into the “5-year route” to settlement if they later meet the relevant requirements.

Example

Lando is a British citizen. He met Han in the UK when Han was a student.

Han’s leave expired and he overstayed. Lando and Han have been living together for over two years. Lando works and earns over the minimum income requirement of £18,600 per annum. However, Lando and Han cannot submit an application within the rules, because Han has no valid leave in the UK.

Due to difficulties in returning to his home country to apply for a visa, Han decides to submit an in-country application for leave to remain as Lando’s unmarried partner.

Han relies on exceptional circumstances and the application is successful. He is granted 30 months’ leave to remain and is allowed to work, although he cannot claim benefits. As Han had to rely on exceptional circumstances, he will only be able to apply for indefinite leave to remain after 10 years.

However, a couple of months after receiving his leave to remain, Han applies again for leave to remain as the partner of Lando. This time he meets all the relevant requirements of Appendix FM because Han has leave to remain as a partner. Therefore he can switch from the 10-year route to the 5-year route to settlement.

His application is made in person at a UKVCAS service centres and is successful. Han is granted leave to remain under the 5-year route to settlement, and therefore he will only have to extend his leave once before being eligible to apply for indefinite leave to remain. By applying twice in a short period of time, Han had to pay twice the visa fees, but managed to shorten his route to settlement.

Assuming instead that Han does not bother to switch, he will have to apply for an extension of leave 30 months after the first grant, before his currently leave expires. This application is granted under the 5-year route, and therefore Han will have to wait a total of 7 ½ years before qualifying for indefinite leave to remain (2 ½ years spent on the 10-year route and 5 years from the grant of his extension of leave application).

If at the time of making an extension application, Han does not meet another requirement of the route, and the application is granted, he will remain on a 10 years route to settlement.

If the application is refused, the applicant will generally have a right of appeal to a judge at the First-tier Tribunal  (Immigration and Asylum Chamber). In the case of applications for leave to remain, the right of appeal can be usually exercised in-country, which means that the applicant does not need to leave the UK while the appeal is pending.

This article has been updated so that it is correct as of the new date of publication shown above.