What are exceptional circumstances in a family application?

Exceptional circumstances, in a UK family application under Appendix FM, are circumstances where refusing the application would breach Article 8 of the European Convention on Human Rights because it would have unjustifiably harsh consequences for the applicant, their partner, a child or another family member. Paragraphs GEN.3.1 and GEN.3.2 of the Immigration Rules set the test.

How exceptional circumstances work

Appendix FM of the Immigration Rules sets the requirements for family applications. Some applicants do not meet them. Paragraphs GEN.3.1 to GEN.3.3 then require the decision-maker to ask whether refusing the application would be a breach of Article 8 of the European Convention on Human Rights, because of unjustifiably harsh consequences for the family.^{[1]Home Office, Immigration Rules Appendix FM: family members}

GOV.UK puts the same idea in plain terms. If a person cannot prove everything the partner route asks for, they may still be able to apply or extend if it would breach their human rights to stop them coming to the UK or make them leave.^{[3]Home Office, Family visas: apply, extend or switch: Apply as a partner or spouse}

The Home Office guidance defines the words. Exceptional circumstances are circumstances where refusal could or would result in unjustifiably harsh consequences for the applicant, their partner or a relevant child, or for another family member whose Article 8 rights would be affected. Exceptional does not mean unusual or unique. A case is not exceptional just because the criteria were missed by a small margin.^{[2]UK Visas and Immigration, Family life and exceptional circumstances: caseworker guidance}

“Unjustifiably harsh consequences” are harsh outcomes that are not justified by the public interest. That includes maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public. The decision-maker asks whether refusal would be proportionate.^{[2]UK Visas and Immigration, Family life and exceptional circumstances: caseworker guidance}

The two paragraphs

Paragraph GEN.3.3 applies to both. It requires the decision-maker to take into account, as a primary consideration, the best interests of any relevant child.^{[1]Home Office, Immigration Rules Appendix FM: family members} A relevant child is under 18 at the date of application and would be affected by a refusal.^{[1]Home Office, Immigration Rules Appendix FM: family members}

Under GEN.3.1 the caseworker must give the applicant 21 days to provide information about other sources of income or funds if they have not already done so.^{[2]UK Visas and Immigration, Family life and exceptional circumstances: caseworker guidance} For a first partner application made on or after 11 April 2024, the minimum income requirement is a gross annual income of at least £29,000, or the savings alternative in the Rules.^{[1]Home Office, Immigration Rules Appendix FM: family members}

What the guidance says counts

The guidance tells caseworkers to consider all relevant factors raised by the applicant. It lists the best interests of a relevant child, the likely impact of refusal on each family member, serious cultural barriers, serious illness or disability, the absence of governance or security in another country, the immigration status of the applicant and any suitability issues. Cumulative factors are balanced against the public interest.^{[2]UK Visas and Immigration, Family life and exceptional circumstances: caseworker guidance}

Some situations are not likely to be unjustifiably harsh. These are lack of knowledge of the local language, separation from extended family and a fall in quality of life, unless there is particular hardship. The guidance also says that continued separation of family members does not, of itself, amount to exceptional circumstances, especially where the family chose to live in separate countries.^{[2]UK Visas and Immigration, Family life and exceptional circumstances: caseworker guidance}

Where the child involved is a qualifying child, meaning a British child or a child who has lived in the UK continuously for at least 7 years, the guidance says refusal will be unjustifiably harsh if both of these apply. There must be a genuine and subsisting parental relationship with the child, and it must be unreasonable for the child to leave the UK.^{[2]UK Visas and Immigration, Family life and exceptional circumstances: caseworker guidance}

If the test is met, the applicant is granted entry clearance or leave on the 10-year route, unless a suitability rule requires refusal. See five-year and ten-year partner routes.^{[1]Home Office, Immigration Rules Appendix FM: family members}

Example

Joy and her husband Tendai have a daughter aged 6. Joy is on a partner visa and applies to extend. Their income is below £29,000 a year, so the financial requirement is not met from the usual sources. Joy says that refusal would force her daughter to leave the only home she has known.

Under GEN.3.1 the caseworker would first ask whether refusal could have unjustifiably harsh consequences. The daughter’s best interests would be a primary consideration. The caseworker would have to give Joy 21 days to provide information on any other credible sources of income or funds.^{[1]Home Office, Immigration Rules Appendix FM: family members[2]UK Visas and Immigration, Family life and exceptional circumstances: caseworker guidance} The outcome depends on the evidence. This example shows the process, not a result.

What people get wrong

Many applicants think that narrowly missing a requirement is itself exceptional. The Home Office guidance says a case is not exceptional just because the criteria in the Rules were missed by a small margin.

That wording comes from the Home Office caseworker guidance.^{[2]UK Visas and Immigration, Family life and exceptional circumstances: caseworker guidance}

The test also takes account of how the family life began. The guidance says that where the person does not meet the Rules and family life was formed in precarious circumstances, such as with limited leave, something very compelling is required to outweigh the public interest in refusal.^{[2]UK Visas and Immigration, Family life and exceptional circumstances: caseworker guidance}

The bottom line

Exceptional circumstances are a safety valve built into Appendix FM. They apply when refusal would have unjustifiably harsh consequences for the family, with a child’s best interests as a primary consideration. A small shortfall is not enough, and the bar is higher where family life began on precarious status. A successful application is granted on the 10-year route.