Appendix FM mentions the immigration rules since 9 July 2012 that when a non-British wish to join their family member in the UK. It states that an applicant is required to meet the financial requirement who is looking to apply to enter, remain in the UK based on family life as a partner or a dependent child of an individual who is a British citizen or has settled status in the UK or is in the UK with refugee leave or on the humanitarian protection ground. However, there are exceptional circumstances in which refusal of the application could amount to be breaching ECHR Article 8.
ECHR Article 8
Article 8 of ECHR (European Convention Human Rights) talks about an individual’s right to respect for private and family life. It gives an individual the right to respect for his/her private and family life, his/her home, and correspondence. However, the right to respect comes with certain restrictions as well that are in accordance with law and necessary in a democratic society.
Before August 2017 Home Office only considered exceptional circumstances on human rights grounds but not under the purview of immigration rules. But from 10 August 2017 considering Supreme Court judgement MM and Others new paragraphs were inserted in Appendix FM which talks about while mandates Home Office to consider UK family visa applications on exceptional circumstances under the immigration rules. It legally binds Home Office that if under such exceptional circumstances refusing a visa application may lead to unjustifiably harsh consequences for an applicant and it is in the best interest of a child to grant a visa, Home Office should not refuse a visa to such applicants.
If a British citizen or one who has settled status in the UK wants to bring his/her spouse and/or child to the UK who happen to be foreign nationals, he/she needs to sponsor his/her partner and/or child and meet the financial requirement for maintenance. But if there are exceptional circumstances due to which a sponsor cannot meet the financial requirement or other requirements, immigration rules provide for granting a visa under exceptional circumstances.
What are the exceptional circumstances?
It is not a black and white situation. The Supreme Court in 2017 while hearing a case concluded that Appendix FM is compatible with Article 8 of ECHR and it is upon the discretion of the Home Office to decide what “exceptional circumstances” and “unjustifiably harsh consequences” mean. The Home Office needs to see what is in the best interest of the applicant and at the same time, it should not be at the cost of the best interest of the public good. So, this balancing act must be made by the Home Office. Applicants need to submit substantial evidence to prove that their removal from the UK or refusal to leave to enter the result in “unjustifiably harsh consequences” and in the case of a child it would not be appropriate at all to refuse him/her joining his/her parents/guardians in the UK.
Paragraph GEN.3.1, GEN.3.2 and GEN.3.3
Paragraph GEN.3.1-3.3 of immigration rules talks about exceptional circumstances. Paragraph GEN3.1 deals with financial requirements and GEN.3.2 deals with other requirements of entry clearance and leave to remain. Paragraph GEN.3.3 deals with exceptional circumstances in the best interests of a child while considering the application.
Immigration status under exceptional circumstances
If you are granted a visa based on exceptional circumstances you will be granted leave to enter for 33 months or leave to remain for 30 months. However, for indefinite leave to remain, you will be able to apply only after having lived for 10 years in the UK contrary to a situation where you do not need to rely on exceptional circumstances to get a UK visa in which you can apply for settlement after having lived for 5 years in the UK.