Exceptional Circumstances In Appendix FM Applications

08 Mar 2021, 58 mins ago

Appendix FM of the Immigration Rules provides a route for partners of British citizens, individuals settled in the UK or those with limited refugee or humanitarian protection leave to apply for permission to enter or remain in the UK.

For the purpose of the rules, partners include both opposite and same-sex spouses or civil partners. Unmarried partners are also eligible to apply, provided they can show they have been living with their partner in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application.

To qualify under Appendix FM various requirements must be satisfied. For example, the applicant must show that their relationship with the sponsor is genuine and subsisting, they have sufficient income or savings to satisfy the financial requirements and the applicant must meet an English language requirement. In cases where an applicant is unable to meet the requirements of Appendix FM, leave to enter or remain in the UK may still be granted on the basis of their right to private and family life under Article 8 ECHR.

So how is this assessed? As outlined in paragraph EX.1 of Appendix FM, the applicant must show that they would face “insurmountable obstacles” to family life continuing with that partner outside the UK should the application be refused. This is a high threshold to meet. It is not merely met by showing that one’s circumstances are difficult or inconvenient, but that a refusal by the Home Office would result in a disproportionate outcome and would not be justified by public interest.

The Immigration Rules define insurmountable obstacles as “the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner”.

The above test is stringent and the onus is on the applicant to provide evidence that there are insurmountable obstacles. The Home Office guidance on insurmountable obstacles provides examples and factors which may be relevant when deciding whether an insurmountable obstacle exists. For example, religious and cultural barriers resulting in same-sex couples facing persecution would present very serious hardship for both the applicant and sponsor, should the couple or family be forced to re-locate, thereby qualifying as an insurmountable obstacle. On the other hand, lack of knowledge of a spoken language in a particular country would not usually amount to an insurmountable obstacle, as it would be expected that family life would still be able to continue regardless. Applicants’ circumstances are examined on a case-by-case basis when determining whether they meet the threshold of insurmountable obstacles.

It is possible to apply for settlement (indefinite leave to remain) on completing five years of leave accumulated under the Appendix FM route. However, if applicants seek to rely on exceptional circumstances, they will need to apply for settlement under the 10-year route. It is possible for an applicant who has been granted leave under the 10-year route to apply for leave to remain under the five-year route, once they are in a position to satisfy all of the requirements of the Immigration Rules.

It should be noted that applicants and sponsors relying on exceptional circumstances will still be required to meet suitability and relationship requirements.

Gherson has extensive experience with family and Appendix FM applications. In the event that you would like to discuss your personal circumstances with respect to any of the above issues, please do not hesitate to contact us.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

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