Exceptional Circumstances under Appendix FM of the Immigration Rules
Appendix FM is a complex, yet extremely popular visa category which allows families to make the UK their home, providing they meet the requirements to do. Most people are aware of the requirements for a partner or spouse visa under Appendix FM of the Immigration Rules, however, there are situations where someone is unable to meet a specific requirement in accordance with the rules. In this situation, the Immigration Rules may look at whether the individual’s circumstances are considered exceptional, thus leading to a grant of visa regardless of meeting all the prerequisite rules.
The starting point when considering if you qualify for leave under exceptional circumstances is by understanding the meaning of the same. Although this is the term which can be interpreted in many ways, exceptional circumstances in brief and in the rules mean that ‘…the individuals’ circumstances are of that that if the Home Office refuse their application, their article 8 rights of the European Convention on Human Rights, also known as their right to private and family life will be breached. This is because the breach would result in unjustifiably harsh consequences for the applicant and/or any other family member involved.’
Exceptional circumstances test may seem straight forward, however, it is difficult to satisfy this rule. Unusual or difficult circumstances will not render exceptional circumstances. You must prove that the refusal will be disproportionate to the legitimate aim and that the individual or their family will suffer from unjustifiably harsh consequences should the application be refused.
Now, it is important to note that exceptional circumstances do not exempt you from all the rules. The applicant must still satisfy the eligibility and suitability criteria.
- Suitability Criteria
- The Suitability Criteria looks at the applicant’s character and why they should not be allowed in the UK. Usually, this must be met if one makes an application based on exceptional circumstances.
- To an extent, this mirrors the general grounds for refusal set out in the Immigration Rules Part 9.
- Eligibility Criteria
- The Eligibility Criteria looks at whether you are entitled and suitable for being granted leave in the UK. Under the rules, the Home Office will look at:
- The relationship between the applicant and sponsor
- The applicant’s status in the UK (if the applicant is already in the UK)
- If there is adequate maintenance and accommodation
- The Applicants Knowledge of English Language
- TB Test must be done if you are from a country listed in Appendix T.
Appendix FM deals with exceptional circumstances in two parts.
- Exceptional circumstances in Gen 3.1-3.3 (leave to enter and leave to remain)
- Exceptional circumstances in EX: Exceptions to certain eligibility requirements for leave to remain as a partner or parent – EX1 and EX2 (leave to remain only)
In order to qualify for exceptional circumstances in Appendix FM, the Home Office expect to see that the relationship is genuine as a requirement that cannot be overlooked. However, the Applicants immigration status, financials and English can fall under exceptional circumstances should they be able to prove that a refusal based on the same will breach their Article 8 rights.
If you believe you meet the requirements under Appendix FM however cannot meet one or more of the requirements based on exceptional circumstances, please contact us and one of our experts will be able to guide you.
Disclaimer:
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.
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