When you are unable to meet one or all immigration, financial, accommodation, and English language requirements as a partner or parent when applying for leave to enter or remain in the UK, your visa application will be refused in usual circumstances, unless there are exceptional circumstances, on basis of which leave to remain or
UK entry clearance may be granted.
Immigration rules for exceptional circumstances
Exceptional circumstances mean that refusal to leave to enter or leave to remain would breach ECHR Article 8 and result in unjustifiably harsh consequences for the applicant, their partner or a relevant child or another family member involved, this consideration has been brought into the immigration in light pf MM (Lebanon) & Others v SSHD [2017]
UKSC 10. Before August 10, 2017, the Home Office considered ECHR Article 8 to assess exceptional circumstances outside the immigration rules.
From August 10, 2017, exceptional circumstances came under the immigration rules after the insertion of paragraphs GEN.3.2. (Dealing with a breach of Article 8 of the European Convention on Human rights) and GEN.3.3. (Dealing with the best interest of a relevant child). This made it legally binding on the Home Office to consider exceptional circumstances under the immigration rules where the refusal would result in unjustifiably harsh consequences and a child's best interest.
An exception to the financial requirements
While applying as a partner, one of the primary requirements is to meet the financial requirement under Appendix FM - £18600. The sponsor and the applicant combined must meet the minimum income threshold to show that they can meet the financial need without seeking public funds. But if the applicant and the sponsor cannot meet the financial requirement and the applicant still wants to get the entry clearance or leave to remain, they can rely on Paragraph GEN3.1. of Appendix FM which allows sponsor and
applicant to rely on other sources of support such as a credible guarantee of
sustainable financial support to the applicant or their partner from a third party.
The word 'Credible' means that the Home Office must be satisfied that the source of income declared by the applicant and sponsor is likely to be genuine and effective. Relevant documentary evidence needs to be submitted to prove this.
Again, the financial support from other sources of funds must mean to the Home Office that if the visa application is refused, it will result in unjustifiably harsh consequences for the parties involved.
Exceptions to other circumstances
Appendix FM of the Immigration Rules contains requirements to be met by a partner or parent to apply for leave to enter to join their partner or child in the UK or leave to remain to continue living with their partner or child in the UK. The financial requirement is one of the several requirements to be met by the applicant. What if the applicant meets the financial requirement but not the other requirements. In such a situation, the sponsor and applicant can rely on GEN3.2, which exempts from other requirements. GEN3.2. Legally binds the Home Office to consider applications based on Article 8 of ECHR. The Home Office must consider that if a visa application is refused in such exceptional circumstances where the applicant cannot meet other requirements except for financial requirements, it will result in unjustifiably harsh consequences for the parties involved.
Exceptional circumstances for a relevant child
Where the Home Office has to decide for a relevant child (a person below 18 at the time of application and would be affected by a refusal which is evident from the information provided by the applicant) the applicant can rely on paragraph GEN.3.3. as per which the Home Office must take into account, as a primary consideration, the best interests of any relevant child while considering visa application.
If you are looking for professional immigration advice, you can contact us for a free assessment by calling 02034111261 or emailing: [email protected].
