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Exceptional Circumstances in Appendix FM Family Visa Applications

Paragraph GEN.3.2. of Appendix FM represents an exception to the requirements of Appendix FM by potentially allowing an application for entry clearance or leave to remain to be granted where a refusal would constitute a breach of an individual’s right to family and private life under Article 8 ECHR. The requirements of paragraph GEN.3.2. will be the topic of this blog post and will be explored in more detail throughout this article. 

What Does Appendix FM Paragraph Gen.3.2. Say?

Paragraph GEN.3.2.(2) provides that;

“[…] the decision-maker must consider… whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 [ECHR], because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.”

Paragraph GEN.3.2.(3) also establishes that;

“Where the exceptional circumstances referred to in sub-paragraph (2) above apply, the applicant will be granted entry clearance or leave to enter or remain under, as appropriate[…]”

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 would result in ‘unjustifiably harsh consequences’ for them or certain family members. Before considering these specific elements of GEN.3.2. it’s worth briefly explaining the nature of Article 8.

What Are Article 8 Rights?

Article 8 is a provision in the European Convention on Human Rights (ECHR) which protects an individual’s right to respect for ‘private life’ and ‘family life’. However, Article 8 is also known as a ‘qualified right’ which, in short, means that even where an individual’s Article 8 rights are engaged, it may still be found that an act by a decision-maker does not represent a disproportionate interference with said rights.

Thus, a key element in the success or failure of an argument under paragraph GEN.3.2. will turn on whether the interference with an Applicant’s private or family life is proportionate when weighed against other considerations. R(Agyarko) v SSHD (2017) helpfully provides us with one example of the type of considerations that will be weighed against an individual’s Article 8 rights, specifically it was stated that:

The court has also to give due weight to the Secretary of State’s policy, expressed in the Rules and the Instructions, that the public interest in immigration control can be outweighed […] only where there are “insurmountable obstacles” or “exceptional circumstances” as defined”.

The above quote neatly sums up some of the competing considerations in play here, namely the balance that must be struck between, on the one hand, the public interest and, on the other, the Article 8 rights of an Applicant in continuing their family/private life in the UK. Section 117B of the Nationality, Immigration and Asylum Act (2002) provides further examples of matters within the ‘public interest’ including;

  • Maintaining effective immigration control;
  • Preventing burdens on the taxpayer;
  • Promoting integration;
  • Protecting the public and the rights and freedoms of others.

What Are ‘Exceptional Circumstances’ and ‘Unjustifiably Harsh Consequences’?

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[…]”. 

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.

Whilst this list is indicative of the type of scenarios which may be considered ‘exceptional circumstances’, it is important to remember that whether a specific situation falls under this category will depend on the specific facts and circumstances of each case. 

On the Position of 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’. Case law has been quite consistent in providing that, where children are involved in an immigration matter, their ‘best interests’ are an important factor which decision-makers must consider. 

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 and decisions at the ECtHR level which require that “the best interests of the child shall be a primary consideration in all actions taken by public authorities concerning children” (Nunez v Norway).

What Happens if an Appendix FM Gen.3.2. Exceptional Circumstances Argument Succeeds?

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 Applicant’s 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.” 

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.

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 the refusal of an application would be a disproportionate interference with an Applicant’s Article 8 rights.

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