Exceptional Circumstances Appendix FM for 5-year family route UK

Exceptional Circumstances Appendix FM for 5-year family route UKThis 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 UK visa outside the rules due to compelling compassionate circumstances. Perhaps, a refusal of entry clearance or leave to remain applications falling under “exceptional circumstances” is quite likely a breach of ECHR Article 8. Therefore, such decisions are well within the Immigration Rules. However, a grant of entry clearance or leave to remain on compelling compassionate grounds is usually outside the rules- as a refusal of such applications does not invoke Article 8.

Exceptional Circumstances: Immigration Rules 5-year family route

In terms of the Statement of Changes in Immigration Rules HC 290, from August 10, 2017, the Appendix FM provides a framework for applications under ECHR Article 8. Accordingly, Appendix FM, Appendix FM-SE and Part 9 of the Immigration Rules incorporate all aspects of ECHR Article 8 for entry clearance or limited leave to remain application as a partner or child under 5-year route, which does not otherwise meet the minimum income requirement. And also take into account the exceptional circumstances that may result in unjustifiably harsh consequences for the applicant, their partner or a relevant child, in case if an application is refused.

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.

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.

Genuineness and Credibility of Other Income and 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.

A grant under 10-year Family Settlement Route instead of 5-year route

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: 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, there could be a host of other factors that may be considered as exceptional circumstances. Accordingly, following could be contributing factors for considering an application under 5-year family route UK on exception circumstances:

  1. The best interests of a relevant child
  2. Ability to lawfully remain in or enter another country
  3. The nature and extent of the family relationships involved
  4. If relevant, the circumstances giving rise to the applicant being separated from their partner and or/child in the UK
  5. The likely impact on the applicant, their partner and/or child if the application is refused
  6. Serious cultural barriers to relocation overseas
  7. The impact of a mental or physical disability or of a serious illness which requires ongoing medical treatment
  8. The absence of governance or security in another country
  9. The immigration status of the applicant or applicants
  10. Cumulative factors should be considered
  11. Lack of knowledge of a language spoken in the country in which the family would be required to continue or resume living
  12. Being separated from extended family members
  13. 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
  14. The applicant and their partner have a child in the UK with serious mental health or learning difficulties
  15. The applicant’s partner has a genuine and subsisting parental relationship with a child in the UK

Meaning of Exceptional Circumstances under Appendix FM

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.

“Exceptional” does not mean “unusual” or “unique”

“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 just because the criteria set out in the Immigration Rules have been missed by a small margin.

“Exceptional” means unjustifiably harsh consequences

Instead, “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.

Protecting Public Interest and “Unjustifiably harsh consequences”

“Unjustifiably harsh consequences” are ones which involve a harsh outcome(s) for the applicant or their family which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others.

Where Article 8 is not usually engaged?

Exceptional circumstances on the basis of Article 8 can only be established where Article 8 is engaged. Article 8 is not usually engaged where the relationship relied upon is one between adult family members (other than partners), such as parents and their adult children, or adult siblings; or between wider family members, such as grandparents and grandchildren or aunts/uncles and nephews/nieces. There may be exceptions to this general rule in cases of unusual or exceptional dependency.

UK Visa Outside Immigration Rules on Compassionate Grounds

Where an application for entry clearance or leave to remain as a partner or parent under Appendix FM does not meet the requirements of the Immigration Rules, it may still be considered on compelling compassionate factors which means getting an entry clearance or leave to remain outside the rules.

What are compelling compassionate grounds?

Compelling compassionate factors are, broadly speaking, exceptional circumstances which mean that a refusal of entry clearance or leave to remain would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of Article 8.

Example of compassionate grounds under the family route

An example might be where an applicant or relevant family member is suffering from serious ill-health, but which does not in itself render refusal a breach of ECHR Article 3 or Article 8.

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