Does ‘could’ mean a ‘mere possibility’? Court of Appeal looks at exceptional circumstances and financial requirements under Appendix FM

In the case of Secretary of State for the Home Department v Khera [2025] EWCA Civ 1571, the Court of Appeal has given guidance on the interpretation of GEN 3.1(1)(b) of Appendix FM of the immigration rules. GEN 3.1(1)(b) is significant for applicants who cannot meet the financial requirements under Appendix FM.

GEN 3.1(1)(b) states that in the circumstances where the minimum income requirements are not met, and:

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).

Appendix FM-SE identifies alternative sources of income, financial support and funds that will be taken into account. These include a ‘credible guarantee of sustainable financial support’ to the applicant / their partner from a third party, or ‘any other credible and reliable’ source of income or funds which is available to the applicant / their partner either at the date of the application or will be available to them during the period of limited leave applied for.

Background facts

Mr Khera, the respondent to the appeal, had applied for entry clearance to join his wife and son in the UK. He did not meet the financial eligibility requirements under Appendix FM and his wife was too unwell to work. Mr Khera therefore applied for the financial resources of his son to be taken into account.

The Upper Tribunal held that Mr Khera was entitled to rely upon his son’s financial resources in support of his application.

In reaching its decision, the Upper Tribunal held that the word ‘could’ in GEN 3.1(1)(b) (…there are exceptional circumstances which could render refusal of entry clearance or leave to remain a breach of Article 8…) should be read as meaning ‘a possibility something will occur’, such that ‘mere possibility’ was sufficient to satisfy GEN 3.1(1)(b).

Court of Appeal decision

In a unanimous decision, the Court of Appeal allowed the Home Secretary’s appeal.

The court first considered GEN 3.1(1)(b) in the context of the Appendix FM scheme as a whole (see paragraphs 35 – 36). While an applicant is required to demonstrate their own financial resilience from their own resources, as an exception, the state might accept proof from third party resources: if the state ignored these third party resources then there is a risk that an applicant’s article 8 rights will be breached. The court stated:

“could” still performs an important and substantive human rights balancing role between the individual and the state and, furthermore the policy objectives of the state are in fact met because, even if in theory the applicant has obtained clearance on a slightly attenuated basis, the applicant still meets the state’s eligibility requirements, albeit by a circuitous route. What happens if clearance is refused? If no recourse is made to third source information, or if on analysis the material is insufficient, this does not necessarily mean that clearance is refused. Paragraph GEN 3.2 is then engaged and the ECO must consider whether refusal “would” violate Article 8. At this juncture the “would” implies a higher threshold than “could” and, again, serves to strike the balance between the state and the individual.

The court went on to provide a useful guide when considering the combined effect of paragraphs GEN 3.1 and 3.2, which it stated should be read together:

Paragraph GEN 3.1

i) Assuming all other relevant eligibility requirements are met does an applicant for entry clearance on the basis of family life meet the financial eligibility requirements? If the answer is “yes”, clearance is granted.

ii) If the financial requirements are not met is it: (i) evident, (ii) from the information provided by the applicant that (iii) there are (extant) (iv) (exceptional) circumstances which (v) could render refusal of entry clearance or leave to remain a breach of the applicant or their family’s Article 8 rights?

iii) If the answer is “yes”, can relevant financial requirements be satisfied by assessing the extraneous sources of income (as set out in paragraph 21A(2) of Appendix FM-SE)?

iv) If “yes”, clearance must be granted. If “no”, the applicant will not be granted clearance under paragraph GEN 3.1, but might be under paragraph GEN 3.2.

Paragraph GEN 3.2

i) Does an applicant for entry clearance on the basis of family life fail to satisfy relevant (financial or other) requirements under the Immigration Rules (including the provisions of GEN 3.1)?

ii) If “yes”, is it the case that: (i) on the basis of the information provided by the applicant (ii) there are (extant) (iii) (exceptional) circumstances which (iv) would render refusal or entry clearance or leave to remain a breach of the applicant or their family’s Article 8 rights?

iii) If “yes”, clearance must be granted. If “no”, the applicant will not be granted clearance.

Finally, at paragraph 39 of the decision, the Court of Appeal provided guidance regarding the relevant language used in paragraphs GEN 3.1 and 3.2.

“Are”: this indicates that circumstances which give rise to the risk of an Article 8 violation are extant i.e. current. It precludes the possibility that the circumstances are hypothetical i.e. a mere possibility.

“Exceptional”: the expression conveys the message that cases where the circumstances might reach the Article 8 threshold will, as a matter of law, be rare – “exceptional”; but nothing more than this. It neither adds nor detracts from the substantive content of Article 8. 

“Could”: means “real risk” or “realistic possibility”.

Applying that to the facts of this case, the Court of Appeal concluded that there were no circumstances that could amount to a real risk or realistic prospect of unjustifiably harsh consequences, as the Upper Tribunal had found that Mrs Khera could return to India to live with her husband and access the medical treatment that she needed there. As the “could” or “would” threshold of an article 8 violation had not been reached, there was no need for the entry clearance officer to consider alternative sources of income under GEN 3.1 and the refusal was lawful.

Conclusion

Paragraphs GEN 3.1 and 3.2 were introduced following the Supreme Court’s decision in MM (Lebanon) v Secretary of State of the Home Department [2017] UKSC 10, when the Home Secretary was encouraged to revise the immigration rules to indicate the circumstances in which alternative sources of funding should or might be taken into account. This was considered necessary to ensure compliance with article 8.

While the new paragraphs seemed to have been fairly straightforward additions to the immigration rules (certainly when compared with the likes of Appendix EU), this decision demonstrates the potential pitfalls that can arise when it comes to their application in practice. Going forward, practitioners will need to ensure that they have carefully addressed and followed the guidance that the court has given here, when seeking to include other sources of income in meeting the financial requirement.