Exceptional cases in spouse visa applications under Appendix FM of the UK Immigration Rules can arise when applicants face unique circumstances that may not strictly adhere to the standard requirements. Below are key points regarding these exceptional cases:
Overview of Appendix FM
Appendix FM is designed to facilitate family reunification for individuals wishing to enter or remain in the UK based on their family life. It includes specific criteria that applicants must meet, including relationship validity, age, and financial requirements. However, the Home Office retains discretion to consider exceptional circumstances that may warrant a departure from standard rules.
What Do Exceptional Circumstances Entail?
The term ” circumstances” frequently arises in discussions surrounding spouse and partner visa requests. It denotes scenarios where an applicant or sponsor struggles to fulfill one or more requirements specified in the Immigration Rules. These prerequisites typically encompass stability, relationship status, living arrangements, and proficiency in English.
Fundamentally exceptional circumstances present an avenue for applicants to present their case when strict adherence, to regulations, would lead to severe repercussions.
To succeed individuals seeking a visa must prove that their visa denial would violate their rights, under Article 8 of the European Convention on Human Rights (ECHR) which protects the right to family life. However, it’s important to note that demonstrating circumstances is a hurdle to overcome. Simply showing that your situation is difficult or unique is not sufficient; you must establish that a denial would result in disproportionate hardships for you, your partner, children, or other family members involved.
Criteria for Suitability and Eligibility For UK Spouse’s Visa Applications
Before further delving into the circumstances, you must understand that you must meet specific criteria to rely on this provision.
The Immigration Rules outline both suitability and eligibility criteria;
Suitability Criteria;
The suitability criteria evaluate the applicant’s character and reasons for why they should or should not be permitted to enter or stay in the UK. While many of these requirements are applicable regardless of circumstances certain exclusions or deportation orders could lead to denials.
Eligibility Criteria;
On the other hand, the eligibility criteria consider;
- The relationship between the applicant and the sponsor.
- The applicant’s immigration status, in the UK (for leave to remain applications).
- Financial stability.
- Accommodation arrangements.
Applicants, from countries listed in Appendix T must undergo tuberculosis screening when entering the UK. In cases like applying under circumstances the usual financial and English language requirements may not be necessary. This exception is especially relevant for partners who often face criteria compared to spouses.
The Immigration Rules address circumstances in two sections within Appendix FM. Specifically paragraphs 3.3 focus on applications for Leave to Enter or Remain and exceptions from the Financial Requirements.
If the sponsor and applicant are unable to meet the requirements, including the minimum income threshold, due to exceptional circumstances Paragraph GEN.3.1(1)(b) applies. It emphasizes considering alternative sources of income or financial support to prevent hardship for the applicant, their partner, or a relevant child if the authorities refuse the application, as outlined in Appendix FM SE.
The trustworthiness and dependability of these sources are crucial often necessitating documentary evidence. There are exceptions, to the requirements; in cases where the financial criteria are met but other aspects of Appendix FM pose challenges Paragraph GEN.3.2 offers a way out from those conditions. This provision is relevant when circumstances could lead to a refusal to violate Article 8 of the ECHR due to harsh outcomes. It is vital to prioritize the interests of any child involved in these situations making sure that their well-being is a focus during application assessments.
Regarding applications for leave to remain only Paragraph EX.1 in Appendix FM specifically addresses circumstances. It outlines two scenarios;
EX.1(a);. Ongoing Parental Relationship
This section pertains to situations where the applicant shares an ongoing relationship, with a child under 18 who resides in the UK and is either British or has been living continuously in the UK for at least seven years. In some cases, authorities may grant permission if they deem it unreasonable to expect the child to leave the UK.
EX.1(b);
A real and ongoing connection, with a partner
This section is relevant when the person applying has a lasting bond with a partner who’s either a British Citizen, settled in the UK, or present in the UK with refugee status or humanitarian protection. There must be barriers to maintaining family life in the UK to meet the criteria.
Proving these barriers can be difficult as it shows that moving abroad would be close to impossible and lead to hardship.
Common Exceptional Cases
- Financial Requirement Flexibility:
- Although the standard financial requirement sets a minimum income threshold (currently £29,000 for new applications as of April 2024), authorities may still grant visas to applicants who do not meet this threshold.
For instance, if an applicant has outstanding debts but demonstrates a commitment to repay them (as seen in the case of Violet from Mexico), the Home Office can exercise discretion based on individual circumstances.
- Although the standard financial requirement sets a minimum income threshold (currently £29,000 for new applications as of April 2024), authorities may still grant visas to applicants who do not meet this threshold.
- Genuine Relationship Evidence:
- The requirement for a genuine and subsisting relationship can be assessed flexibly. If an applicant provides compelling evidence of their relationship’s authenticity—such as long-term cohabitation or shared responsibilities—this may influence decision-making, even if some documentation is lacking or less conventional.
- Health and Welfare Considerations:
- Applicants with health issues or those who provide care for dependents may have their applications considered favorably despite not meeting all standard criteria. The Home Office can take into account the human rights implications under Article 8 of the European Convention on Human Rights, which protects the right to family life.
- Humanitarian Grounds:
- Applications may be viewed favorably if there are significant humanitarian concerns, such as risk to life or well-being in the applicant’s home country. This could include situations involving domestic violence or persecution, where refusal of entry would lead to severe consequences for the applicant.
Factors Influencing Discretion
- Evidence Quality: The quality and comprehensiveness of evidence provided can significantly impact outcomes. Strong documentation demonstrating commitment and intention to live together permanently can sway decisions in favor of applicants.
- Previous Immigration History: An applicant’s past compliance with UK immigration laws may also be taken into consideration. A history of lawful residence and adherence to visa conditions can bolster an application.
- Support from Sponsors: The ability of the sponsoring partner to provide adequate support without recourse to public funds is crucial. However, if there are compelling reasons why this support might be temporarily insufficient, discretion may still be applied23.
Understanding the Nuances of “Extraordinary Circumstances”
Determining what qualifies as circumstances can be intricate and highly dependent on perspectives. The subjective nature of the term “adds complexity to the evaluation process. Consequently, each situation is distinct and assessed based on its factors.
Agyarko [2017] UKSC 11 provides an illustrative example of this intricacy, where the Supreme Court reviewed appeals from individuals who had entered as visitors but overstayed their visas. The Court ruled that it falls under the Home Office’s jurisdiction to define what constitutes ” circumstances” and ” harsh consequences.”This places the responsibility, on the applicant to present proof that being denied entry or permission to stay in the UK would lead to disproportionate difficulties.
Insignificant inconveniences financial struggles or personal choices might not reach this standard.
The Journey, to Obtaining Settlement and Immigration Status
When an application is approved due to situations the applicant typically receives permission to enter for 33 months or stay for 30 months. Nonetheless, they can only seek settlement ( residency) after a decade. On the other hand, applicants who fulfill the standard criteria can apply for settlement after five years.
Both groups of applicants generally do not have access to funds. There could be specific scenarios where this requirement is waived.
For individuals granted permission under the “10-year path ” transitioning to the “5-year path” towards settlement is achievable once they meet the criteria. This enables them to speed up their journey towards residency.
Exceptional circumstances serve as a support system, for individuals encountering difficulties in meeting the conditions of spouse’s visa applications outlined in Appendix FM of the Immigration Rules. However, proving circumstances come with a bar and each situation is distinct necessitating compelling evidence of disproportionate challenges.
When navigating through the intricacies of circumstance, seek legal counsel to construct a solid case.
This advice can assist individuals in communicating their circumstances improving their likelihood of a visa application. Although exceptional situations can provide some optimism it’s crucial to recognize that they do not guarantee exemption, from the regulations but rather serve as a measure intended for addressing cases involving severe difficulties.
To sum up, when encountering situations, comprehensive preparation, robust documentation, and legal knowledge can greatly impact your application for a spouse or partner visa aiding you in navigating the immigration terrain successfully.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your travel for a UK Spouse’s Visa straightforward and successful. Whether you’re applying for a UK Spouse’s Visa or a UK Fiancé(e) Visa, we handle every step—from preparing your application to gathering the required documents.
Our immigration lawyer consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process and coordinate with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients secure the visas/permits they need for a UK Spouse’s Visa. Call us today at +234 812 5505 986 to learn how we can assist you.
