In recent years, the Home Office has made a number of changes to the Immigration Rules as part of its plan to reduce net migration. This can mean that as someone approaches the end of their visa, they do not appear to fit into a category to extend their stay in the UK, but they have built a life in the UK and want to understand their long-term options.
One common example of this is where someone is in a relationship with a British national but they cannot meet the financial requirement for a spouse or unmarried partner visa. This requires, in most circumstances, the couple to have an income of £29,000 before tax but usually a salary is only considered after someone has been employed for six months. While there are different ways to meet the financial requirement, sometimes people need to consider other options.
What other options might be available?
Where someone wants to argue that they should be allowed to remain without meeting the financial requirement, their case will be dependent on their individual circumstances. The Immigration Rules allow for someone with a British child to make an application for an extension of leave on this basis, but this can have consequences for their long-term route to indefinite leave to remain and they should get detailed advice on this before applying.
Where someone does not have a British child, it is possible to argue that exceptional circumstances exist under paragraph GEN 3.1 of the Immigration Rules. Where there are exceptional circumstances, the Home Office can consider whether there is other financial support available such as support from family members, which would not normally be considered under the Immigration Rules.
There is also the option of relying on paragraph EX.1 of the Immigration Rules for those who have a British child and it would not be reasonable for the child to live outside the UK or a British partner where there are insurmountable obstacles to them living together outside the UK.
What are exceptional circumstances?
There is no defined list of circumstances which might amount to exceptional circumstances but generally it means that a refusal would be a breach of someone's human right to family and private life because it could result in unjustifiably harsh consequences for the individual, their partner or any children. This is a very high threshold and it can be difficult to successfully argue that a case meets the standard required by the Home Office. These cases often involve having to appeal the Home Office decision, which can be a lengthy process.
Factors which would be considered include whether the decision would result in the long-term separation of a family unit, for example because the family could not live together in another country. Evidence of the relationships of all parties involved, the impact of the decision on them and their inability to live together elsewhere would need to be included. Additional dependencies will also be relevant, including whether there are care needs which need to be met by the partner or parent involved and the impact of separation on the person's physical and mental health. In these circumstances medical evidence would be essential.
How can we help?
Making applications under this route can be challenging but that is where our team of experts can help. We have vast experience in advising individuals on how to make an application outside the Rules and the likelihood of an application being successful.
As these applications allow someone to remain in the UK while their application is pending provided they apply before their current visa expires, we also have experience of working with clients where circumstances change and they need to vary their application to another route, for example because they receive a job offer which qualifies for a Skilled Worker visa or because they now meet the financial requirements for the partner visa.
It is important that someone making this type of application or varying their application to a different route gets specialist advice as a single mistake can result in the application being refused and the person having to leave the UK. It is also important that someone understands how their application will affect future applications and their ability to remain in the UK long term.
If you have questions about the Rules or how to approach an application based on exceptional circumstances, please get in touch.
