Exceptional circumstances in family spouse partner visas UK
Exceptional circumstances require attention to detail when preparing each case. Preparation is the key to success when relying on exceptional circumstances for UK family spouse visa.
All eligibility requirements must be met for a partner to qualify for entry clearance or leave to remain on the 5-year route. Otherwise to qualify for entry clearance or leave to remain on a 10-year route: • an applicant must meet all eligibility requirements, and rely on other sources of income to meet the financial eligibility requirement because there are exceptional circumstances in accordance with GEN.3.1. of Appendix FM • an applicant must meet some and qualify for an exception to the other requirements because EX.1.(a) or (b) of Appendix FM applies • an applicant meets some or no eligibility requirements but there are exceptional circumstances in accordance with paragraph GEN.3.2. of Appendix FM.
When relying on ‘exceptional circumstances’, applicants are still required to evidence that the relationship with the UK sponsor is genuine. However, the immigration status, financial and English language requirements don’t need to be satisfied.
What are the ‘Exceptional circumstances’
‘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’. 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.
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.
What are ‘Unjustifiably harsh consequences’
‘Unjustifiably harsh consequences’ are ones which involve a harsh outcome or outcomes 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.
What is the definition of ‘relevant child’
A ‘relevant child’ means a person who:
• is under the age of 18 years at the date of application
• it is evident from the information provided by the applicant would be affected by a decision to refuse the application.
How the cases are assessed
This involves consideration of whether refusal would be proportionate, taking into account all the facts of the case and, as a primary consideration, the best interests of any relevant child. The case-law makes clear that where the applicant does not meet the requirements of the rules, and has established their family life in ‘precarious’ circumstances (for example, when they have limited leave to enter or remain in the UK), something ‘very compelling’ is required to outweigh the public interest in refusal. Likewise, where family life is formed or exists with a person outside the UK who has no right to enter the UK and does not meet the requirements of the rules for entry clearance, Article 8 does not require that they be granted entry, in the absence of such exceptional circumstances.
Key questions in the entry clearance (applications from outside the UK) context
In the entry clearance context, a key question in the assessment, taking into account as a primary consideration the best interests of any relevant child, will be: why can’t the UK partner go or remain overseas to continue or maintain their family life with the applicant? Alternatively, is it proportionate to expect the family to separate or for existing separation to be maintained?
