For a British or settled person in the UK, who wishes to bring their spouse visa, the requirements are fairly straightforward. The four requirements being relationship, accommodation, finances and knowledge of English. But what happens if you fall short of meeting one of the requirements under Appendix FM?
The Immigration Rules consider cases where the sponsor is unable to satisfy one or more of the requirements, and provide that leave to enter or remain can be granted if there are exceptional circumstances.
Exceptional Circumstances can be found in various parts of the Immigration Rules.In short however, in short, to be considered under ‘exceptional circumstances’ the Applicant must demonstrate to the Home Office that a refusal to grant leave to enter or remain, would be a breach of the applicant’s rights under Article 8 of the European Convention on Human Rights (the right to private and family life), and a result in a refusal would be unjustifiably harsh consequences” for the applicant, their partner, child or another family member involved.
On the face of it, therefore, it would seem that the Applicant would have to evidence demonstrate that their circumstances were particularly unusual or difficult, or that one almost meets the requirements of the Rules The threshold for this however, is very high.
The Applicant would need to prove that the consequences of a partner visa refusal would be disproportionate and not justified by the public interest, such as that in maintaining effective immigration control.
Exceptional circumstances” doesn’t exempt you from all the rules
To succeed under the Immigration Rules, an applicant must satisfy suitability and eligibility criteria. Some of these requirements must be met even when attempting to justify exceptional circumstances.
Suitability criteria take into considerations the applicant’s character and reasons why they should not be admitted to or allowed to remain in the UK.
The eligibility requirements look at:
the relationship between the applicant and the sponsor,
the applicant’s status in the UK (in case of an application for leave to remain),
maintenance and accommodation, and
knowledge of the English language.
What grant of leave would you get under exceptional circumstances?
The applicant will be granted leave to enter for 33 months or leave to remain for 30 months, but will only qualify for Indefinite Leave to Remain after 10 years.
By contrast, applicants who satisfy the requirements of the rules without having to rely on exceptional circumstances can apply for settlement after five years. However, If an applicant is granted leave to enter or remain under the “10-year route” they can switch into the “5-year route” to settlement once they meet the relevant requirements.
Neither category of applicant can have recourse to public funds.