This relates to the details of exceptional circumstances Appendix FM relating to minimum income requirements and unjustifiably harsh consequences under the 5-year settlement route on the basis of family life. And also explains the UK visa application outside the rules due to compelling compassionate circumstances.
- UK visa on exceptional compassionate circumstances: FAQs
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UK visa on exceptional compassionate circumstances: FAQs
Yes. Quite clearly, in terms of the Statement of Changes in Immigration Rules HC 290, from August 10, 2017, Appendix FM provides a framework for applications under ECHR Article 8.
Perhaps, it is important to note that due to the Statement of Changes in Immigration Rules HC 290, Appendix FM cases which before Aug 10, 2017, were considered outside the Immigration Rules on Article 8 grounds from Aug 10, 2017, onwards are considered under Appendix FM: that is, within the Immigration Rules. Moreover, this provision is made by paragraphs GEN.3.2. and GEN.3.3. of Appendix FM, inserted by HC 290.
Perhaps, not considering an application made under Appendix FM on “exceptional circumstances” is quite likely a breach of ECHR Article 8. Therefore, the Home Office needs to consider application made under Appendix FM on Exceptional Circumstances:
1. for not meeting the minimum income requirements
2. resulting in unjustifiably harsh consequences for the applicant, their partner or a relevant child, if an application is refused
Perhaps, compelling compassionate factors are exceptional circumstances. Accordingly, means that a refusal would result in unjustifiably harsh consequences for the applicant or their family. However, not considering a UK visa application on compelling compassionate grounds does not invoke Article 8. Therefore, UK visa on compelling compassionate grounds is usually outside the rules.
Where an application for entry clearance or leave to remain as a partner, child or parent under Appendix FM does not meet the requirements of the Immigration Rules, it may still be considered on compelling compassionate factors. Perhaps, this means getting an entry clearance or leave to remain outside the rules.
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What is an example of compassionate grounds?
An applicant or relevant family member is suffering from serious ill-health. However, a refusal does not in itself constitute a breach of ECHR Article 3 or Article 8.
What is the meaning of exceptional circumstances?
For the purpose of Appendix FM, “Exceptional circumstances” means circumstances which could or would render refusal of entry clearance or limited leave to remain a breach of ECHR Article 8 (the right to respect for private and family life), because refusal could or would result in unjustifiably harsh consequences for the applicant, their partner or a relevant child, or would result in unjustifiably harsh consequences for another family member whose Article 8 rights it is evident from the application would be affected by a refusal.
Does Exceptional mean “unusual” or “unique” circumstances?
No. “Exceptional” does not mean “unusual” or “unique”. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional if an applicant has missed the criteria set out in the Immigration Rules by a small margin.
Does “Exceptional” means unjustifiably harsh consequences?
Yes. Indeed, “exceptional” means circumstances in which refusal of the application could or would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under Article 8.
Exceptional Circumstances: Min Income Requirements
Accordingly, in term of paragraphs GEN.3.1. and GEN.3.3. of Appendix FM, in circumstances where a refusal of an application under family settlement 5-year route could otherwise breach ECHR Article 8, other credible and reliable sources of earnings or finance available to a couple are taken into account whilst considering whether an applicant meets the minimum income requirement under paragraph E-ECP.3.1., E-ECC.2.1., E-LTRP.3.1. or E-LTRC.2.1 of Appendix FM.
Therefore, for the grant of entry clearance or limited leave to remain on the basis of income-related exceptional circumstances, it is critical that the other credible and reliable sources of income, financial support or funds such as the migrant partner’s prospective earnings or guarantee of third party support must meet the minimum income requirements.
Credibility of Financial Support!
Moreover, Paragraph 21A of Appendix FM-SE sets out objective criteria for the genuineness, credibility and reliability of other sources of income, financial support or funds. Accordingly, such other source(s) of income, financial support or funds may only count towards meeting the minimum income requirement if an applicant is able to satisfy their genuineness, credibility and reliability.
When a grant under 10-year route is possible?
Apparently, if other income or sources enables an applicant to meet the min income requirements then an entry clearance or leave to remain in the UK is granted under the 10-year partner route to ILR under Appendix FM. However, an applicant can subsequently switch to the 5-year settlement route if he/she is able to meet the requirements under the 5-year route for leave to remain application as a spouse, civil, unmarried, same-sex partner.
Exceptional Circumstances due to unjustifiably harsh consequences
In addition to exceptional circumstances relating to minimum income requirements, there may be other types of exceptional circumstances that would result in unjustifiably harsh consequences for the applicant or their family if entry clearance or limited leave to remain is not granted on Article 8 grounds.
Perhaps, the primary consideration is the best interests of any relevant child. However, the decision-maker may consider a host of other factors as exceptional circumstances. Accordingly, the following could be contributing factors for considering an application under 5-year family route UK on exception circumstances:
- The best interests of a relevant child
- Ability to lawfully remain in or enter another country
- The nature and extent of the family relationships involved
- If relevant, the circumstances giving rise to an applicant separation from his/her partner and or/child in the UK
- The likely impact on the applicant, their partner and/or child due to a refusal decision
- Serious cultural barriers to relocation overseas
- The impact of a mental or physical disability or of a serious illness which requires ongoing medical treatment
- The absence of governance or security in another country
- The immigration status of the applicant or applicants
- Consideration of the cumulative factors
- Lack of knowledge of a language spoken in the country in which the family require to continue or resume living
- Separation from extended family members may necessitate grounds for exception circumstances
- A material change in the quality of life for the family in the country in which they would be required to continue or resume living
- The applicant and their partner have a child in the UK with serious mental health or learning difficulties- may necessitate grounds for exception circumstances
- The applicant’s partner has a genuine and subsisting parental relationship with a child in the UK
Unjustifiably harsh consequences: protecting the public interest
“Unjustifiably harsh consequences” are ones which involve a harsh outcome(s) for the applicant or their family. However, such consequences are not justified by the public interest, such as:
- maintaining effective immigration controls
- preventing burdens on the taxpayer
- promoting integration
- protecting the public
- the rights and freedoms of others
When Article 8 for exceptional circumstances is not applicable?
Exceptional circumstances on the basis of Article 8 can only be established where Article 8 is engaged. However, Article 8 is not usually applicable, in case of the following types of relationships:
- parents and their adult children
- adult siblings
- between wider family members, such as grandparents and grandchildren or aunts/uncles and nephews/nieces
However, there are exceptions to this general rule in circumstances of unusual or exceptional dependency.
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Moreover, to know the country-specific details of UK visa applications please refer to Egypt, Ghana, India, Iraq, Jordan, Lebanon, Nigeria, Pakistan, Philippines, Russia, Saudi Arabia, Turkey, UAE and the USA.