1. Immigration Rules
Exceptional Circumstances under the Immigration Rules
In fact, before Aug 10, 2017, the Home Office considered exceptional circumstances in UK family visa applications on human rights grounds outside the Immigration Rules under ECHR Article 8. However, the Statement of Changes HC290 inserted paragraphs GEN.3.2. and GEN.3.3. in Appendix FM to consider UK visa applications on exceptional circumstances under the Immigration Rules. Accordingly, from Aug 10, 2017, it is a legal binding on the Home Office to consider a UK family visa application for exceptional circumstances under the Immigration Rules for unjustifiably harsh consequences and in the best interests of a child.
GEN 3.2……….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…..
GEN 3.3……….the decision-maker must take into account, as a primary consideration, the best interests of any relevant child…..
2. ECHR Article 8
A UK Visa Refusal May Breach ECHR Article 8
A UK family visa refusal may tantamount to breaching ECHR Article 8 (the right to respect for private and family life) if the rejection may result in unjustifiably harsh consequences for the applicant, their partner or a relevant child. And also if a refusal result in unjustifiably harsh consequences for another family member under ECHR Article 8. Therefore, it is not possible to refuse a UK family visa application without considering the exceptional compassionate circumstances.
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 circumstances meaning such situations in which refusal of the application may result in unjustifiably harsh consequences for the individual or their family. And a refusal is not proportionate under Article 8.
When exceptional circumstances under Article 8 are not engaged?
Exceptional circumstances for UK family visa applications under Immigration Rules are only considered when ECHR 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.
Is UK Visa on Compelling Compassionate Grounds outside the Rules?
Yes. When a UK family visa application under Immigration Rules does not qualifies for exceptional circumstances, the decision maker can still consider the application on compelling compassionate grounds if 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.
Example of UK Visa on Compassionate Grounds
An applicant or relevant family member is suffering from serious ill-health. However, a refusal does not constitute a breach of ECHR Article 3 or 8.
Why Considering Exceptional Circumstances is necessary?
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:
- for not meeting the minimum income requirements
- resulting in unjustifiably harsh consequences for the applicant, their partner or a relevant child
1. Min Income Requirements and Exceptional Circumstances
In term of paragraphs GEN.3.1. and GEN.3.3. of Appendix FM a decision maker needs to consider exceptional circumstances- where a refusal of an application under family settlement 5-year route could otherwise breach ECHR Article 8- for 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.
Indeed, for income-related exceptional circumstances under the Immigration Rules, it is critical that 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.
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.
Therefore, if other income or sources enables an applicant to meet the min income requirements then an applicant gets a visa on exceptional circumstances under the 10-year partner route to ILR. 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.
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2. 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 a UK visa application on exceptional 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 in the country in which they would continue or resume living
- The applicant and their partner have a child in the UK with serious mental health or learning difficulties. Indeed, this may necessitate grounds for a UK visa on exceptional circumstances
- The applicant’s partner has a genuine and subsisting parental relationship with a child in the UK
When Protecting the Public Interest May Supersede?
“Unjustifiably harsh consequences” are ones which involve a harsh outcome(s) for the applicant or his/her family. However, certain consequences on the grounds of protecting public interest are not justified as exceptional circumstances. Therefore, protecting public interests may supersede unjustifiably harsh consequences due to:
- maintaining effective immigration controls
- preventing burdens on the taxpayer
- promoting integration
- protecting the public at large
- protecting the rights and freedoms of others