1. Appendix FM: Key Provisions for Family-Based Exceptions

Appendix FM to the Immigration Rules sets out the majority of rules governing immigration applications made on the basis of an applicant’s family life, including routes to settlement for Partners and Parents. Each route sets out validity, suitability and eligibility requirements which must usually be met for an application to succeed.

There are, however, exceptions to these requirements set out in Appendix FM. Applications which demonstrate exceptional circumstances in family visa applications may still succeed even where certain requirements, such as the minimum income requirement, are not met. The provisions are set out in paragraphs GEN.3.1. to 3.2. and EX.1. to EX.2.

This article will focus on the provisions of paragraph GEN.3.2. of Appendix FM (exceptional circumstances provision). However, applications may potentially rely on all of these provisions, in the alternative. It is therefore worth briefly laying out some of the key differences between them.

2. Comparing Exceptional Circumstances Provisions in Appendix FM

GEN.3.1. to 3.3. applies to applications for Entry Clearance and Leave to Remain, i.e. to applications made both inside and outside the UK whereas Section EX family provisions applies only to applications for Leave to Remain, i.e. to applications made inside the UK.

Section EX applies only to certain eligibility criteria, including the financial requirement, the accommodation requirement, the English language requirement and some but not all of the immigration requirements. It is not of assistance to applicants who fall foul of the suitability requirements, for example because of criminal or negative immigration history.

By contrast, GEN.3.2. Appendix FM may, in principle, apply to any of the eligibility or suitability criteria (including the applicable provisions in Part 9 of the Immigration Rules). GEN.3.1. is more limited in scope, and provides for reliance on third party support to meet the minimum income requirement exception in partner visa applications, where an applicant cannot do so through reliance on their or their partner’s income or cash savings. (Read our previous article UK Partner and Family Visa Financial Requirements Explained for further detail on how the financial requirement may be met). 

For Section EX, only children who are in the UK, who are either British or have been in the UK for at least seven years, are relevant, whereas GEN3.2. to GEN.3.3. are concerned with any child who would be affected, regardless of nationality and whether they are inside or outside the UK.

You can read more about the provisions of Section EX in Exceptions to Appendix FM Partner & Parent Visa Requirements and GEN3.1 in Third Party Support in Appendix FM Applications.

3. Why Appendix FM Contains Different Types of Exceptions

The rather unhelpful structure of Appendix FM reflects its historical development amid legal battles over the UK’s adherence to its obligations as a signatory to the European Convention on Human Rights. Paragraphs EX.1. and EX.2. are set out under the heading, ‘Section EX: Exceptions to certain eligibility requirements for leave to remain as a partner or parent’ whereas GEN.3.2. to 3.3. are under the heading, ‘Exceptional circumstances’. The former have been included in Appendix FM since its inception in 2012 while the latter came into effect from 10 August 2017 following the Statement of Changes HC 290.

As set out in the Explanatory Memorandum to the Statement of Changes HC 290, GEN.3.1. to 3.3. were introduced in response to the Supreme Court judgments of MM (Lebanon) & Others v the Secretary for the Home Department [2017] UKSC 10 and Agyarko v Secretary of State for the Home Department [2017] UKSC 10, which were handed down on 22 February 2017. In MM (Lebanon), the Supreme Court held that the Rules had failed to give effect to the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children. In Agyarko, the Supreme Court held that the test for determining whether a decision would breach Article 8 rights was lawful. That test had previously been set out in Home Office guidance. Following the introduction of HC 290, that test was brought within the Rules themselves.

The effect of this addition was to import a free-standing Article 8 ECHR proportionality assessment into Appendix FM.

4. Understanding Article 8 ECHR in Appendix FM Family Visa Applications

Article 8 of the European Convention on Human Rights (ECHR) protects an individual’s right to respect for ‘private life’ and ‘family life’. Article 8 family life immigration claims are of a unitary nature, i.e. the law recognises the existence of the family unit, with the consequence that interference with the family life of one member is an interference with the rights of all those within the ambit of the family whose rights are engaged: Secretary of State for the Home Department v Abbas [2017] EWCA Civ 1393. In the case of Entry Clearance applications, this extends the jurisdiction of the ECHR beyond its usual limits of the territory of its Contracting States, as was recently reaffirmed by the Upper Tribunal in Al Hassan & Ors (Article 8; entry clearance; KF (Syria)) [2024] UKUT 00234. 

Article 8 is a qualified right, meaning that it may be infringed when it is deemed necessary in the interests of society. The question is therefore whether this interference is justified, or proportionate. This entails a balancing exercise between an individual and their family’s rights under Article 8 and the public interest in violating those rights, to decide whether the interference is proportionate. 

The ultimate question for a decision-maker (or Tribunal on appeal) is whether a fair balance has been struck between an individual and their family’s Article 8 family life rights and the public interest.

5. Public Interest and Section 117B Considerations

Section 117B of the Nationality, Immigration and Asylum Act 2002 provides a statutory footing for some of the matters within the ‘public interest’. Formally, the legislation binds only Tribunals and courts when considering an immigration appeal involving Article 8 ECHR (see 117A(2)(a)), and not the Secretary of State when considering applications. However, the Court of Appeal has noted that as an expression of Parliament’s view of the public interest, decision-making on applications should take this into account (see MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705). Per 117B, the matters within the public interest include:

• Maintaining effective immigration control;
• Preventing burdens on the taxpayer;
• Promoting integration.

The maintenance of immigration control is a matter which falls within the Secretary of State’s democratic authority. The Rules themselves are designed to be compliant with the UK’s obligations under Article 8 and are an expression of the Secretary of State’s policy, which must be afforded due weight. Thus it will only be in exceptional circumstances in family visa applications that the public interest in immigration control will be outweighed by an Article 8 ECHR claim.

6. GEN.3.2: Broad Scope of Exceptional Circumstances

As set out earlier, the GEN.3.2. Exceptional circumstances provision is broad in scope. It applies where:

• An applicant does not meet the requirements of Appendix FM and/or Part 9 of the Immigration Rules; and
• It is evident that there are exceptional circumstances which would render refusal of entry clearance or leave to remain a breach of Article 8 of the European Convention on Human Rights because such refusal could result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 would be affected.

GEN.3.2. therefore tells us that in order to make use of this provision, an Applicant would need to show that there are ‘exceptional circumstances’ which mean that a refusal could result in ‘unjustifiably harsh consequences’ for them, their partner, a relevant child, or any other family member whose Article 8 rights would be affected. This is a high threshold.

7. Wider Consideration of Family Members in Appendix FM Family Visa Applications

As well as applying to more provisions than GEN.3.1., GEN.3.2. casts the net wider in terms of the family members whose Article 8 rights may be considered. Whereas the former will consider only the rights of the applicant, their partner and a relevant child, the latter may include an assessment of the impact on any other family member whose Article 8 rights would be affected. 

A word of caution, however, is necessary because not all familial relationships will attract rights under Article 8. Although there are a range of relationships which may amount to family life, the Court of Appeal recently noted that “the family life of parents who live together with their young children is at the core of family life” and that more distant relationships may be afforded lesser weight in the proportionality assessment (Arshad v Secretary of State for the Home Department [2025] EWCA Civ 355). Relationships between adult relatives require additional levels of dependency, beyond the normal ties of love and affection that exist between family members in order to engage Article 8 (see further Martinez Alvarado v The Netherlands (Application no. 4470/21) (10 December 2024)). Expert advice is advisable to determine whether the relationship could qualify and if so, how to evidence that.

8. High Threshold for Resilience on GEN.3.2

GEN.3.2. raises the already high threshold an applicant will need to meet to rely on it. The question is not whether refusal of the application could breach Article 8 rights (as it is for GEN 3.1.), but rather whether it would. 

9. Definition of ‘Exceptional Circumstances’

The Home Office’s Family Policy guidance provides the following definition for ‘Exceptional circumstances’:

“‘Exceptional’ does not mean ‘unusual’ or ‘unique’. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional […] 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.”

Likewise, the Family Policy guidance also defines ‘unjustifiably harsh consequences’, as “harsh outcome(s) for the applicant or their family which is not justified by the public interest[…]”.

It is crucial to emphasise that the necessary consequences need not only fall on the applicant due to the unitary nature of family life. In an Entry Clearance application refusal will prevent the applicant from joining their partner and/or child in the UK. The impact of that separation on the UK-based family member(s) and the applicant must be considered separately, as well as on the impact on the family unit as a whole. 

10. Relevant Factors in Assessing Exceptional Circumstances

The guidance also provides the following as a non-exhaustive list of relevant factors to consider in the context of ‘exceptional circumstances’:

• The best interests of a relevant child;
• Ability to lawfully remain in or enter another country;
• The nature and extent of the family relationships involved;
• Where relevant, the circumstances giving rise to the applicant being separated from their partner and or/child in the UK;
• The likely impact on the applicant, their partner and/or child if the application is refused;
• Serious cultural barriers to relocation overseas;
• The impact of a mental or physical disability or of a serious illness which requires ongoing medical treatment;
• The absence of governance or security in another country;
• The immigration status of the applicant (if in the UK).

Whilst this list is indicative of the type of scenarios which may be considered ‘exceptional circumstances’, it is important to remember that whether an application will fall under this category will depend on the specific facts and circumstances of each case, and how those facts are evidenced. 

The guidance is also clear that relevant factors must be considered cumulatively when being weighed against the public interest.

11. Proportionality and Compliance with the Rules

The extent to which an applicant satisfies the requirements of the Rules may be another relevant factor in the proportionality assessment. The courts have emphatically rejected the notion that a ‘near miss’ will itself be sufficient to warrant a grant of leave. Thresholds such as the minimum income requirement or English language requirement are clear bright lines, which one either satisfies or not. However, the fact that many but not all requirements are satisfied may be a relevant consideration in the proportionality assessment that follows once Article 8 is engaged. In Chau Le (Immigration Rules – de minimis principle) [2016] UKUT 00186, the Upper Tribunal made the point as follows:

“The Article 8 claimant whose case turns on proportionality and who has a poor immigration history and a case which is decisively non-compliant with the Rules will almost invariably fare worse than the claimant whose history is one of general compliance and/or marginal non-qualification and non-compliance as regards the Rules.”

Any application seeking to rely on exceptional circumstances should therefore clearly set out and evidence those requirements which are met as well why there are exceptional circumstances which justify a grant of leave despite not meeting all the requirements.

12. Special Consideration for Children

It is also worth briefly explaining the rather special position of children. As seen from the sections of paragraph GEN.3.2. quoted above, special consideration has to be given to the effects that a refusal may have on the ‘relevant child’. This is means a person who:

• is under the age of 18 years at the date of application; and 
• it is evident from the information provided by the applicant would be affected by a decision to refuse the application. 

The child need not be in the UK. Case law has firmly established that, where children are involved in an immigration matter, their ‘best interests’ must be a primary, although not necessarily determinative, consideration in an Article 8 proportionality assessment (see e.g. Zoumbas v Secretary of State for the Home Department [2013] UKSC 74).

13. Statutory Duties Regarding Children

Specifically, Section 55 of the Borders, Citizenship and Immigration Act (2009) places the Secretary of State under a duty to “safeguard and promote the welfare of children” when exercising any of their functions in relation to immigration, asylum or nationality. It further compels the Secretary of State to have regard to the ‘Every child matters Guidance’, issued in 2009, thereby aligning with Article 3 of the UN Convention on Rights of the Child.

14. Outcome When Relying on GEN.3.2 Exceptional Circumstances (Appendix FM)

Where an applicant is able to successfully rely on GEN.3.2., the guidance provides that leave should be granted in accordance with “the most relevant decision paragraph” under Appendix FM. Importantly, it states that Applicants will “normally be granted leave to 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.” Crucially, this puts applicants on a 10 year route to settlement, in contrast to the typical 5 year route, for those who are able to satisfy all requirements of the Rules.

Conditions of Leave

It further establishes that this grant of leave will typically be subject to the condition that the applicant not have recourse to public funds, unless it can be shown that they are/will be at risk of destitution or there are other reasons, tied to the welfare of a relevant child.

Practical Considerations

As will hopefully be seen from this article, there are still options open to individuals who may find themselves unable to satisfy the rules set out in Appendix FM. As has been explained, it may be possible for an applicant to rely on paragraph GEN.3.2. of Appendix FM, on the basis that there are exceptional circumstances in their case which would give rise to unjustifiably harsh consequences for them or other family members if their application were refused. However, we also need to acknowledge that GEN.3.2 is not a panacea as it would still need to be shown that Article 8 rights are engaged and that the refusal of an application would be a disproportionate interference with those rights.

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16. Frequently Asked Questions

What is Appendix FM?

Appendix FM to the Immigration Rules sets out the rules for most immigration applications based on family life, including routes to settlement for Partners and Parents. Children of parents with limited leave to remain in the UK may also apply to join or remain with their parents. However, Appendix FM does not govern settlement applications for children.

Who can apply under Appendix FM?

Applicants include fiancés, spouses, civil partners, unmarried partners, parents of children living in the UK, and children of parents with limited leave to remain in the UK.

What are the eligibility requirements?

Eligibility depends on the route, but usually includes relationship, financial, accommodation, and English language requirements. All routes are also subject to suitability requirements, which are largely concerned with negative immigration and criminal history.

How long does an Appendix FM application take?

Processing times vary by route, application type, and whether the application is made from inside or outside the UK. Standard processing times vary from 8 to 12 weeks. Priority and super priority services may also be available to purchase for an additional fee. It is important to note that no processing times are guaranteed.

What evidence is needed to support an application?

There are two kinds of evidence required for applications, specified and unspecified. The latter is set out in Appendix FM-SE and includes specifications regarding the form of financial evidence, evidence of English language proficiency, evidence of marriages, civil partnerships and divorce. In addition, applicants and sponsors will need to produce a passport or travel document which establishes their identity and, where relevant, their immigration status in the UK. Unspecified evidence, for example to prove a genuine and subsisting relationship, may take a wide variety of forms. 

Can I apply for settlement under Appendix FM?

Yes. Certain routes allow partners and parents to apply for Indefinite Leave to Remain. It should be noted that anyone granted leave to remain on the basis of meeting the test in GEN.3.2. will apply for settlement under Appendix Family Life.

Can unmarried partners apply?

Unmarried partners are included within the definition of partner for Appendix FM and may therefore apply. To meet this definition unmarried partners will need to have been in a relationship akin to marriage for at least two years. Two years of cohabitation is no longer required but evidence of cohabitation may be used to demonstrate that the relationship has been akin to marriage for the requisite time period.

Are there financial requirements?

Yes. Most routes require applicants to meet minimum income or savings thresholds to prove they can support themselves and dependants. As detailed above, this and other requirements may be disapplied if an applicant is able to show that they meet the exceptional circumstances test in GEN.3.2. Third party financial support may also be relied upon if the exceptional circumstances test in GEN.3.1. is met.

What happens if my circumstances change?

Those who have successfully applied under Appendix FM for entry clearance or leave to remain must notify the Home Office of changes in their personal and contact details, such as a change of name or address. Similarly, if a relationship breaks down that should be reported to the Home Office. If this was as a result of Domestic Violence it may be possible to apply for settlement under Appendix Victim of Domestic Abuse. Changes of circumstances may be reported through an applicant’s UKVI account or through the ‘Migrant change of circumstances form’.

Can children be included in an Appendix FM application?

Yes. Dependent children under 18 can usually be included, but further requirements will have to be met and evidenced.