Article 8 and Exceptional Circumstances in Family Life (part 5 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:
What is Article 8
The 5-year and the 10-year Routes
Article 8 for Visitors
What Happens when the Home Office Receives Your Visa Application?
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?
Is there a Genuine and Subsisting Relationship with a Partner
What Does Not Help
What May Help
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
The Best Interests of a Child
How the Home Office considers the Best Interests of a Child:
- 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 5.
The Best Interests of a Child
The Home Office will dig for Article 8 grounds in cases where the interests of children are involved – either directly or indirectly.
In the Supreme Court judgment in MM (Lebanon) & Others, the court asked that Appendix FM give ‘direct effect’ to the Secretary of State’s existing duties under section 55 of the Borders, Citizenship and Immigration Act 2009 and Article 3 of UN Convention on the Rights of the Child, to take into account, as a primary consideration, the best interests of a child affected by an immigration decision.
How the Home Office considers the Best Interests of a Child
The Home Office encourages the decision-makers to assess how the child’s overall well-being will be affected by the decision. They emphasise that they should not blame the childfor any failure by their parent(s) to comply with UK immigration controls.
The following is a non-exhaustive list of factors that may be relevant:
- whether their parent or parents is (are) expected to remain outside or to leave the UK
- the age of the child at the date of application
- the child’s nationality, with particular importance to British citizenship where the child has this
- the child’s current country of residence and length of residence there
- the family circumstances in which the child is living
- the physical circumstances in which the child is living
- the child’s relationships with their parent or parents overseas and in the UK
- how long the child has been in education and what stage their education has reached
- the child’s health
- the child’s connection with the country outside the UK in which their parents are, or one of their parents is, currently living or where the child is likely to live if their parents leave the UK
- the extent to which the decision will interfere with, or impact on the child’s family or private life
Where the child is resident overseas, additional relevant factors will include:
- the reasons for the child being overseas
- where the child is a child of a previous relationship of the applicant or their partner: did the applicant show that s/he or their partner have sole parental responsibility for the child? Has the child’s other parent consented to the child’s relocation to the UK, and was it in the child’s best interest?
- whether the child has siblings under the age of 18 overseas or in the UK, and their age and nationality
- where the child or those siblings were born in the UK
- whether the child has previously visited or lived in the UK
Where the child is resident in the UK, additional relevant factors will include:
- how renewable the child’s connection is with the country outside the UK in which their parents are, or one of their parents is, currently living
- whether (and, if so, to what extent) the child will have linguistic, medical or other difficulties in adapting to life in that country
- whether there are any factors affecting the child’s well-being that can only be alleviated by the presence of the applicant in the UK
- what effective and material contribution the applicant’s presence in the UK would make to safeguarding and promoting the child’s well-being. Is this significant in nature?
For example, support during or following a major medical procedure, especially if this is likely to lead to a permanent change in the child’s life where there is no other family member in the UK able to care for the child and the applicant’s presence in the UK will form part of achieving a durable solution for the child that is in their best interests.
On the other hand, support for the child in the UK during exams is unlikely to be sufficient. Unless there are additional factors in the child’s circumstances requiring a clear contribution and support from the applicant.
The Home Office says that the factors have to be substantive and compelling.
What about Court Orders?
Issued by the Family Court in the UK? The UKVI suggests to its decision-makers that they have to be considered but should not be determinative of the immigration decision. Family orders, such as contact, care, ward of the court and residence orders, do not limit the exercise of the Secretary of State’s powers with respect to immigration control.
No Recourse to Public Funds
If the Home Office does agree that there are exceptional circumstances that would render refusal a breach of ECHR Article 8, they’ll allow the application. However, as you already know, they’ll switch you from a 5-year route to settlement to a 10-year one. Also, as will all standard cases, the UKVI will impose a ‘no recourse to public funds on your stay in the UK.
If you are unable to meet Appendix FM requirements and are trying to prove Article 8 exceptional circumstances and if you know that you’ll not be able to live without relying on public funds – you need to state so in the application. If you don’t and later claim benefits with ‘with no recourse to public funds’ condition imposed on your stay – you’ll be committing an immigration offence.
In other words, you’ll need to provide documents confirming that you are destitute. Also, if it applies, there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income.
It will help to submit as many documents as possible confirming the existence of exceptional circumstances relating to your financial circumstances. It will always help if you elaborate on the reasons in your letter in support of the application.
What does ‘Destitute’ Mean?
A person is destitute if:
- they do not have adequate accommodation or any means of obtaining it (whether or not their other essential living needs are met)
- they have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs
A person is at imminent risk of destitution if:
- at the time the application is received, they have accommodation and can meet their essential living needs. However, there are reasons why these are unlikely to continue beyond 3 months from the date of application.
Coronavirus (COVID-19) Concessions
The pandemic may have caused disruption to travel plans, causing breaks in continuous lawful immigration status/residence requirements. It might have affected your ability to meet the requirements for settlement.
For this reason, the Home Office introduced certain concessions. For example, you may request them to exercise discretion to allow you to start, stay on (extend – apply for further leave) or complete a route to the settlement despite being in the UK as a visitor or with leave of six months or less, in-country or overseas for a short period without leave. You’ll need to provide that you were not able to travel or apply due to COVID-19 between March and 31 August 2020.
However, despite the original rule, some visitors could still make their applications from the UK after 31 August 2020, and it was allowed on a case by case basis until 30 June 2021. Usually, the Home Office allowed this where applicants could provide documents confirming that their visa application was urgent or that they could not apply from outside the UK as a result of COVID-19 on that date.
Fiancé and Fiancée
If a person was in the UK with 6 months’ leave as a fiancé, fiancée or proposed civil partner and their wedding or civil ceremony had been delayed due to coronavirus, they may have been granted additional time to stay. The UKVI called it ‘exceptional assurance’. Any period of stay under such exceptional assurance extended the same conditions as their initial leave granted under this route. The exceptional assurance policy ended on 31 October 2021.
If a person is here with 6 months’ leave as a fiancé, fiancée or proposed civil partner, the current family Immigration Rules allow them to apply for an extension of their visa. It is provided they can prove that there is good reason for their wedding or civil partnership not taking place during the initial 6 month period of leave to enter. For example, the cancellation of a wedding or civil partnership ceremony due to COVID-19 is a good reason under this policy.
1 March 2020 and 19 July 2021
The Home Office encouraged their decision-makers to disregard a short period of time spent overseas up to 6 months between 1 March 2020 and 19 July 2021 where leave to enter or remain expired and an applicant could not return to the UK to renew their leave due to COVID-19. However, all applicants needed to provide documents confirming that they made their next visa application as soon as practicable.
Also, the UKVI recognises that the break-in continuous residence may be because a Visa Application Centre was closed or inaccessible. It is provided, as a result the applicant could not apply for further leave to enter – where they should have been applying for leave to remain, or the applicant returned to the UK as a visitor or following a visa waiver or carrier waiver in order to complete an application for further leave once back in the UK.
Also, rather unprecedently, some applicants could make their indefinite leave to remain (settlement) applications outside the UK.
Generally, you may claim to rely on Covid exemption for the period between 1 March 2020 and 30 June 2021, provided you can explain how the pandemic affected you.