Exceptional Circumstances In UK Immigration- Relevant Factors, Documents Required & How to Apply

Where a person (a partner, parent or child) cannot meet the requirements of the Immigration Rules -Appendix FM to remain in the UK on the 5-year route, they are expected to leave the UK. Only where there is something in the evidence provided by the applicant to suggest it would be unreasonable for a child to leave the UK, where there are very significant difficulties in family life with a partner in another country, or exceptional circumstances, that the family who would otherwise be expected to leave, will satisfy the requirements under the rules or the exceptional circumstances policies to enter or remain in the UK on a 10-year route.

If there are exceptional circumstances, and any other relevant requirements are met, leave to remain is granted on a 10-year route to settlement (as a partner, parent or child under Appendix FM) except where a dependent child qualifies for a grant under the private life route.

Exceptional circumstances may be accepted where refusal would:

• Breach ECHR (European Convention on Human Rights) Article 8

• Cause unjustifiably harsh consequences for a British child, a settled partner, or a vulnerable family member.

Exceptional circumstances are used in:

• UK family visa refusals

• UK partner or parent routes

• UK Private life applications

• Overstayers with strong family ties

What are Exceptional Circumstances?

‘Exceptional circumstances’ means certain circumstances because of which a person should not be refused entry clearance or LLR (Limited Leave to Remain) because such refusals could or would render a breach of that person’s right to respect for private and family life under the ECHR - Article 8. Exceptional circumstances are considered where the refusal could or would result in unjustifiably harsh consequences for the applicant, their partner, or a relevant child, or for another family member whose rights under Article 8 it is evident from the application would be affected by a refusal. 

‘Exceptional’ does not mean ‘unique’ or ‘unusual’. Whilst all immigration cases are in some ways unique, those unique factors do not generally amount to exceptional. For example, a case is not exceptional only because the applicant has missed the criteria set out in the UK Immigration Rules by a small margin. Instead, ‘exceptional’ means circumstances in which an application’s refusal would or could result in unjustifiably harsh consequences for the applicant, their partner, or a relevant child, such that refusal of the application would not be proportionate under ECHR Article 8.

What are the Unjustifiably Harsh Consequences?

‘Unjustifiably harsh consequences’ mean consequences which involve a harsh outcome (s) for the applicant or their family, which are not justified by the public interest, including preventing burdens on the taxpayer, in maintaining effective immigration controls, promoting integration, and protecting the public and the rights and freedoms of others.

This involves considering whether refusal would be proportionate and in the best interests of any relevant child. The case-law makes clear that where the applicant does not meet the requirements of the immigration rules, and has established their family life in the UK in ‘precarious’ circumstances (for example, when they have limited leave to enter or limited leave to remain in the UK), something ‘very compelling’ is required to outweigh the public interest in refusal. Likewise, where family life exists or is formed with a person outside the UK who has no right to enter the UK and does not meet the requirements of the immigration rules for entry clearance, Article 8 does not require that they be granted entry, in the absence of such exceptional circumstances.

Immigration Rules that expressly allow exceptional circumstances

1. Private Life

Immigration Rules - Private Life provides specified routes based on age and length of residence in the UK. Where these requirements are not met, decision-makers must consider whether there are exceptional circumstances, and the refusal would disproportionately interfere with the private life of the applicant. 

This is particularly relevant for long-term residents, children under 18, young adults, and individuals with deep cultural and social integration.

Under the Appendix Private Life if the applicant does not meet the suitability requirements (subject to fall for refusal under Immigration Rules - Part Suitability), or does not meet any of the eligibility criteria for the Private Life route, the UKVI must be satisfied that refusal of permission to stay would not breach the applicant’s Article 8 right on the basis of private life.

2. Family Life under Appendix FM

Under Immigration Rules - Appendix FM, exceptional circumstances are considered where the applicant does not satisfy the eligibility criteria for a UK partner or parent route or Immigration Rules - Part Suitability, but if they are refused, it would lead to unjustifiably harsh consequences for them, their partner, or a relevant child.

Immigration Rule - Paragraph GEN.3.2 allows leave to be granted outside the rules where refusal would breach Article 8.

3. Exceptional circumstances where the financial requirement is not met

Under Immigration Rule - Appendix FM and Appendix FM-SE, the applicant must normally meet a minimum income threshold using specified sources of income. Failure to meet this requirement would usually result in application refusal unless exceptional circumstances apply under Article 8 of the ECHR, which means such refusal could result in unjustifiably harsh consequences for the applicant, their partner, or a relevant child.

Exceptional circumstances also apply in Article 8 claims made while in immigration detention pending removal and Article 8 claims in Asylum / Humanitarian Protection and removal decisions. 

Relevant factors 

The UKVI will consider the particular circumstances of each case in the light of all the evidence and information provided by the applicant. In order to determine whether there are exceptional circumstances that mean that refusal of the application could or would result in unjustifiably harsh consequences for the applicant, their partner, or a relevant child, the UKVI will take into account all relevant factors raised by the applicant. In so doing, any relevant child’s best interests are a primary consideration.

1. Child's best interests

Where a relevant child is affected, Immigration Rules - GEN.3.3 and Section 55 of the BCIA (Borders, Citizenship and Immigration Act) 2009 require the UKVI to treat the best interests of the child as a primary consideration.

A ‘relevant child’ is someone in the UK or overseas, aged under 18 on the date of application, and who would be affected by a decision to refuse the application.

What does “primary consideration” mean

Primary consideration means the best interests of the child must be considered first, they must be given substantial weight, and even though they are not automatically decisive, but carry significant weight. 

If an application for leave is refused due to the financial requirement that would seriously harm the child, this can amount to exceptional circumstances.

Also, the ZH (Tanzania) v SSHD case in 2011 set the precedent that children’s welfare comes first in UK immigration law, (MM (Lebanon)) and others v Secretary of State for the Home Department [2017] UKSC 10 case established that strict Immigration Rules (such as financial requirements) must be applied flexibly where refusal may breach human rights, and R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11 case confirmed that “exceptional circumstances” exist where refusal would cause unjustifiably harsh consequences for the applicant or their family.

2. Ability of the applicant, their partner, and/or child to lawfully remain in or enter another country

In respect of an entry clearance application, this means the UKVI will check whether the applicant and any other members of the family unit could legally move to or remain in another country if they are refused permission. If they cannot, refusing them entry clearance may be considered too harsh.

3. The nature and strength of the family relationships involved

The UKVI will look at who the family members are, how close the relationship is, and the longevity of their relationship. Closer and more dependent family members, such as a partner or child, would have a higher probability of being considered under the unjustifiably harsh consequences, forming part of exceptional circumstances.

4. The circumstances (where relevant) giving rise to the applicant being separated from their partner and/or children in the UK

The UKVI will consider:

Whether the family has in the past lived together overseas 

• Any reasons why they could not or cannot now live together 

• Whether the couple chose to commence their family life together whilst living in different countries, or while one partner was temporarily in another country, therefore knowing that they would have to, in order to live together, meet the immigration requirements of one country or another  

• Whether there are any reasons because of which the partner and/or child in the UK cannot join or rejoin the applicant overseas - would it be unjustifiably harsh for them to join or rejoin the applicant overseas? Would it be unjustifiably harsh to expect the family to continue to live apart? 

Refusal that would result in the continued separation of family members does not of itself constitute unjustifiably harsh consequences or exceptional circumstances, particularly where the family has chosen to commence or continue their relationships in different countries.

5. The likely impact of the refusal on the applicant, their partner, and/or child 

The UKVI will consider the impact of refusal on each family member forming part of the application, as well as the family unit as a whole. 

6. Serious cultural barriers to moving to or living in another country 

The UKVI will consider whether there are serious cultural barriers, for example, differences in language, customs, religion, or social norms that make it extremely difficult or harmful for the applicant, their partner, and/or child to move to or live in another country.

7. The impact of a physical or mental illness or a serious illness that requires ongoing medical treatment

The UKVI will consider whether living in or moving to another country would seriously harm a person’s health because they need ongoing medical support or care that they may not be able to access in that country. If this is the case, this would strongly support exceptional circumstances.

8. The lack of governance or security in another country

The UKVI will consider whether living in or moving to another country would expose the applicant, their partner or any relevant child to real and present risks such as any breakdown of law and order, armed conflict or widespread violence, lack of effective government or rule of law, high risk of crime, exploitation, or abuse, or Inability of the state to protect its citizens.

9. The applicant's or applicants' immigration status

The UKVI may take into account the circumstances around entry to and stay in the UK of each individual applicant and the proportion of the time they have been in the UK legally as opposed to illegally. Did they establish their right to an Article 8 consideration when they were in the UK unlawfully? 

10. Suitability 

The UKVI may take into account any failure of mandatory or discretionary suitability requirements when determining whether refusal is unjustifiably harsh. A person will be refused under Immigration Rule – Appendix FM where they fail under certain sections of Immigration Rules – Part Suitability. 

Examples of circumstances which are not likely to give rise to ‘unjustifiably harsh consequences’ include:

• Lack of knowledge of a language in another country, where the family would be required to continue or resume living

• Being separated from extended family members

• A substantial change in the quality of life for the family in another country, where they would be required to continue or resume living

• The applicant and their partner have a child in the UK who has learning difficulties or serious mental health

• The partner of the applicant has a genuine and ongoing parental relationship with a child in the UK

Documents required

Documents that are normally always required include a detailed personal statement from the applicant outlining their unique circumstances, a covering letter, or legal representations connecting facts to GEN.3.1, GEN.3.2, and GEN.3.3, proof of identity and immigration status (passport, eVisa, visa history), and proof of residence in the UK (utility bills, tenancy agreements, etc).

Documentary proof of relationships, such as a marriage/civil partnership certificate, birth certificates of any children, evidence of a genuine and ongoing relationship (e.g., test messages, photos/videos, and joint bills), proof of parental responsibility and dependency (whether financial, emotional, or related to care).

If a relevant child is involved, the applicant will need to prove the child’s best interests through documents, such as a British passport or immigration status of the child, evidence of length of residence in the UK, school letters or reports, GP or paediatric medical letters, nursery or childcare letters, social worker or safeguarding reports

Documentary evidence for financial requirement exceptions under Appendix FM-SE includes bank statements, an explanation for the shortfall in income, proof of an alternative financial support, adequate accommodation in the UK, and documents to show that no recourse to public funds would be manageable

Evidence explaining separation from partner/child, proof of attempts to reunite. communication records, evidence of emotional or psychological impact, and statements from partner, family members, or carers.

Steps to apply based on Exceptional Circumstances

The applicant applying on the family route or private life route on the basis of exceptional circumstances will normally need to follow the steps mentioned below:

• Choose the correct application route

• Declare your human rights claim

• Prepare strong written representations

• Submit detailed personal statements

• Gather supporting evidence

• Submitting biometrics, if applicable

• Submit the application on time

Getting a decision

Successful family route and private life route applicants will normally be granted leave to enter or remain for a period of 30 months, with scope to qualify for settlement as a partner or parent (or as their child) after 10 years.

How can Visa and Migration help?

We can play an important role in supporting your exceptional circumstances-based immigration application. These cases are complex and rely heavily on discretion. They usually depend on human rights grounds, especially ECHR Article 8, and require careful legal and factual presentation. 

We carefully review your situation to understand whether the immigration route is right for you and how strong your case really is. We help you to build a clear, strong, and convincing legal argument, including demonstrating the best interests of any child involved. From helping you collect and organise the right documentary evidence to offering step-by-step guidance and ongoing support, we stay with you throughout the process, making it as clear and stress-free as possible.

For expert advice and queries, you can call us at +44 (0)20 3411 1261 or write at info@visaandmigration.com.