Article 8 and Exceptional Circumstances in Family Life (part 3 of 5)

Article 8 and Exceptional Circumstances in Family Life (part 3 of 5)

Due to the size and the complexity of the Article 8 area, I’ve divided this article into 5 parts.

Below is the summary of what I’ll cover in each part:

 

Part 1:

What is Article 8

Taxpayer’s Interests

The 5-year and the 10-year Routes

Article 8 for Visitors

What Happens when the Home Office Receives Your Visa Application?

Paragraph EX.1.

 

Part 2:

Parental Relationship with a Child

The Child’s 7 Years of Residence in the UK

Is there a Genuine and Subsisting Parental Relationship?

Is it Reasonable for the Child to Leave the UK?

Strategical Considerations

 

Part 3:

Is there a Genuine and Subsisting Relationship with a Partner

Insurmountable Obstacles

What Does Not Help

What May Help

 

Part 4:

Article 8 Exceptional Circumstances

The Minimum Income Requirement

Other Sources of Income, Financial Support or Funds in Exceptional Circumstances

There are Strings Attached

The Genuineness, Credibility and Reliability

 

Part 5:

The Best Interests of a Child

How the Home Office considers the Best Interests of a Child:

• Generally
• Where the child is resident overseas
• when the child resides in the UK
• Where there are Family Court orders

No Recourse to Public Funds

Coronavirus (COVID-19) Concessions

 

This is part 3.

 

Is there a Genuine and Subsisting Relationship with a Partner

If there are no children in the family or the child does not qualify under paragraph E.X.1, you can still apply. It is provided that you can prove the existence of a genuine and subsisting relationship with a partner.

This partner will need to be either:

1. a British citizen; or
2. settled in the UK; or
3. be in the UK with refugee leave or humanitarian protection; or
4. with limited leave to remain under Appendix EU or Appendix ECAA Extension of Stay

Additionally, you’ll need to prove that ‘there are insurmountable obstacles to family life with that partner continuing outside the UK.’

 

Insurmountable Obstacles

You can find the definition of ‘Insurmountable obstacles’ in Appendix FM:

‘“insurmountable obstacles” means 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.’’

An insurmountable obstacle can take 2 forms:

• a very significant difficulty which would be literally impossible to overcome, so it would be impossible for family life with the applicant’s partner to continue overseas – for example, because they would not be able to gain entry to the proposed country of return;
• alternatively, it may mean a very significant difficulty which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could be overcome but to do so would entail very serious hardship for one or both of them.

The threshold in cases involving a partner is considerably higher than that involving a child. The applicants cannot rely on section 55 of the Borders, Citizenship and Immigration Act 2009.

In cases with partners, the question is not whether it would be ‘reasonable to expect the applicant’s partner to join them overseas. Caselaw, involving paragraph E.X.1, clarifies that a significant degree of hardship or inconvenience does not amount to an insurmountable obstacle.

ECHR Article 8 does not oblige the UK to accept the choice of a couple as to which country they would prefer to reside in.

When deciding whether insurmountable obstacles exist, the Home Office will rely on the relevant country of origin information.

 

What Does Not Help

The following factors are unlikely to help you prove the existence of insurmountable obstacles:

• Lack of knowledge of a language spoken in the country in which the couple would be required to live;
• Being separated from extended family members (e.g. the partner’s parents, siblings, etc.)
• A material change in the quality of life (e.g. the type of accommodation they would live in, or a reduction in their income or standard of living, etc.)

 

What May Help

It may help if you can prove that:

• either you or your family members cannot enter or stay in another country lawfully;
• You or your partner will be separated from a child from a former family relationship, provided you can prove dependency at the level required by Article 8;
• there are serious cultural barriers to relocation overseas. This may apply where the partner would be so disadvantaged by the social, religious or cultural situation in a particular country that they could not be expected to live there. For example, the same-sex couple or an inter-faith couple where the UK partner would face a real risk of prosecution, persecution, or serious harm in the country of proposed relocation due to their relationship or faith. Such a barrier must affect their fundamental rights, cannot reasonably be overcome and would present a severe obstacle to pursuing family life in that country.
• there will be a devastating impact of a mental or physical disability as a result of relations. Alternatively, where there is a serious illness that requires ongoing medical treatment.
• there is no governance or security in another country. For example, this may apply where civil society has broken down as a result of conflict or natural disaster. In this case, you’ll need to prove that such a breakdown affects the country as a whole. If you would like to support your case by such an argument, you’ll need to provide country information supporting your statements.