Article 8 and Exceptional Circumstances in Family Life (part 4 of 5)

Article 8 and Exceptional Circumstances in Family Life (part 4 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 4.

 

Article 8 Exceptional Circumstances

If you cannot meet the one or all immigration, financial, accommodation and English language requirements, you can try to claim the existence of Article 8 exceptional circumstances in your case. If successful, the Home Office will allow the application. However, as with successfully relying on paragraph E.X.1, they’ll switch you from a 5-year route to a 10-year route.

‘Exceptional circumstances’ means circumstances which could or would render refusal of entry clearance or limited leave to remain a breach of ECHR Article 8 (the right to respect for private and family life), because refusal could or would result in unjustifiably harsh consequences for the applicant, their partner or a relevant child.

 

‘Exceptional’ does not mean ‘unusual’ or ‘unique.’

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.

 

The Minimum Income Requirement

Those who apply for entry clearance or limited leave to remain as a partner under the 5-year route need to demonstrate that they meet the minimum income requirement under Appendix FM.

The Supreme Court judgment in MM (Lebanon) & Others v SSHD [2017] UKSC 10 significantly clarified the situation in this regard. It was confirmed that where refusal of application could breach ECHR Article 8, the Home Office should take a flexible approach when assessing the parties’ ability to meet the financial requirement.

According to Appendix FM, among other things, the parties should meet the minimum income requirement. It is provided they are not exempt because they receive illness-related benefits.

In other words, the applicant needs to show that their spouse earns at least £18,600 gross a year. Suppose they are applying with children under 18, not British citizens, not settled in the UK and do not have limited leave to remain under Appendix EU. In that case, the minimum income requirement is increased by £3,800 for the first child and £2,400 for each additional child. So, in other words, if a mother with 3 children applies, the minimum income requirement will be £27,200 (£18,600 + £3,800 + £2,400 + £2,400).

In addition, this income will need to be from one of the following permitted sources:

1. income from employment (salaried or non-salaried)
2. non-employment income (e.g. property rental, dividends and other investment income, maintenance grant, stipend etc.)
3. cash savings (should be above £16,000)
4. income from self-employment
5. pension
6. income from self-employment.

 

What does the MM (Lebanon) & Others’ Flexible Approach Mean?

It means that if you successfully argue the Article 8 exceptionality of the case, the Home Office is bound to take into account other credible and reliable sources of earnings or finance available to a couple.

 

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

These may include:

(a) a credible guarantee of sustainable financial support to the applicant or their partner from a third party;

(b) credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or

(c) any other credible and reliable source of income or funds for the applicant or their partner, which is available to them at the date of application or which will become available to them during the period of limited leave applied for.

 

There are Strings Attached

The source of income, financial support or funds must not be a loan unless evidence submitted with the application shows that:

(a) the source is a mortgage on a residential or commercial property in the UK or overseas which at the date of application is owned by the applicant, their partner or both, or by the third party who provided a credible guarantee of sustainable financial support;

(b) the mortgage is provided by a financial institution regulated by the appropriate regulatory body for the country in which that institution is operating; and

(c) the mortgage payments are reasonably affordable by the person(s) responsible for them and are likely to remain so for the period of limited leave applied for.

 

The Genuineness, Credibility and Reliability

When determining the genuineness, credibility and reliability of the source of income, financial support or funds, the decision-maker pay close attention to the following:

• in respect of a guarantee of sustainable financial support from a third party:

(i) if you provided verifiable documents from the third party to prove their guarantee of financial support;

(ii) if they have they signed, dated and witnessed or otherwise independently verified;

(iii) if the third party has provided sufficient evidence of their general financial situation. This is to enable the decision-maker to assess the likelihood of the guaranteed financial support continuing for the period of limited leave applied for;

(iv) whether the third party has provided verifiable documentary evidence of the nature, extent and duration of any current or previous financial support which they have provided to the applicant or their partner;

(v) will this guarantee help you meet the financial requirement of the applicant?; and

(vi) the likelihood of a change in the third party’s financial situation or in their relationship with the applicant or the applicant’s partner during the period of limited leave applied for.

 

(b) in respect of prospective earnings from sustainable employment or self-employment of the applicant or their partner:

(i) whether, at the date of application, your prospective employer made you a specific offer of employment. Alternatively, the Home Office will double-check if a clear basis for self-employment exists. Both employment or self-employment will have to start within 3 months of your arrival in the UK (if you are applying for entry clearance) or within 3 months of the date of application (if you are applying for leave to remain);

(ii) whether you have provided verifiable documents to confirm the above. These documents will have to be in a specific format:

• on a headed paper
• signed, dated and witnessed or otherwise independently verified
• details of the agreed or proposed purchase or rental of business premises (if applicable)
• including a signed or draft contract of employment (or a signed or draft contract for the provision of goods or services, if self-employed).
• Does your employment contract include details of:

1. a relevant employment advertisement and employment application
2. working hours
3. the rate of gross pay. Your salary must be compatible with the total size of the workforce and the turnover of the company
4. the date of application for a job
5. relevant professional, occupational or educational qualifications necessary to perform the job
6. the level of your English language skills

(iii) Did the offer of employment come from a family member or friend?

And finally,

(c) in respect of any other credible and reliable source of income or funds for the applicant or their partner:

(i) if you provided verifiable documentary evidence of the source;

(ii) whether that evidence is provided by a financial institution regulated by the appropriate regulatory body for the country in which that institution is operating, and is signed, dated and witnessed or otherwise independently verified;

(iii) where the income is, or the funds are based on, or derived from, ownership of an asset, whether you have provided verifiable documentary evidence of its current or previous ownership by the applicant, their partner or both;

(iv) whether you have provided sufficient evidence to enable the decision-maker to assess the likelihood of the source of income or funds being available to them during the period of limited leave applied for.