Exceptional Circumstances

What Exceptional Circumstances Means in Appendix FM

Appendix FM contains the family routes for partners, parents and children of British citizens, settled people and some others, such as people with protection status. Most applications turn on the standard spouse visa and parent visa requirements: relationship, finances, English, accommodation and suitability. Under paragraph GEN.3.2, where an application made or considered under Appendix FM does not meet those requirements, the decision maker must consider whether exceptional circumstances would make refusal a breach of Article 8 because it would result in unjustifiably harsh consequences for you, your partner, a relevant child or another family member whose Article 8 rights are evidently affected.

Exceptional does not mean unusual or unique, and missing a rule by a small margin is not enough. It means circumstances in which refusal would not be proportionate under Article 8. Unjustifiably harsh consequences are outcomes for you or your family that the public interest in immigration control, protecting the taxpayer, promoting integration and protecting the public does not justify.

The test applies to entry clearance and leave to remain, and is considered inside your partner, parent or child application, not on a separate form. Article 8 arguments more generally, including private life, are covered on our Article 8 family and private life page.

The GEN.3.2 Test: Unjustifiably Harsh Consequences

The guidance sets out two stages. First, the decision maker checks the general, suitability and eligibility requirements without considering exceptional circumstances; if they are met, leave is granted on the five-year route. If not, the case is considered under GEN.3.1 to GEN.3.3 on the information you have provided, as a proportionality balance weighing these factors:

• the best interests of any relevant child, as a primary consideration under GEN.3.3
• whether the family can lawfully live together in another country; a wish or preference to live in the UK is not enough
• the family relationships, how any separation came about and the likely impact of refusal on each family member
• serious cultural barriers, a disability or serious illness needing ongoing treatment, or a lack of governance or security abroad
• your immigration history, including whether family life was formed while your status was precarious, and suitability

Factors in your favour are weighed cumulatively against the public interest, and where family life was formed while your stay was precarious, something very compelling is needed. Not speaking the other country's language, separation from extended family or a fall in living standards rarely tip the balance alone. One of the guidance's examples of a possible unjustifiably harsh consequence is a child in the UK with serious mental health or learning difficulties whose treatment is not available abroad.

A relevant child is anyone under 18 at the date of application whom your evidence shows would be affected by refusal, in the UK or overseas. Their best interests are assessed separately from the parent's case and the child must not be blamed for a parent's immigration history; age, nationality (British citizenship carries particular importance), residence, education, health and parental relationships all count. A Family Court order is relevant but not decisive, and must come with the Family Court's written permission for disclosure.

GEN.3.1 covers the financial requirement alone, in partner and child applications: where the minimum income requirement is not met from the specified sources and refusal could be unjustifiably harsh, the decision maker must consider other credible and reliable sources under paragraph 21A of Appendix FM-SE, such as sustainable third-party support or credible prospective earnings.

How It Differs From EX.1 and Leave Outside the Rules

EX.1 and exceptional circumstances both lead to the 10-year route, but they are different tests. EX.1 is a defined exception, available only in applications made in the UK, to some eligibility requirements: for a parent, a genuine and subsisting parental relationship with a child who is in the UK and is either British or has seven years' continuous residence, and who is either under 18 or was under 18 when you were first granted leave on the basis that EX.1 applied, where it would not be reasonable to expect the child to leave; for a partner, insurmountable obstacles to family life continuing outside the UK, where your partner is in the UK and is British, settled, has protection status, has limited leave under Appendix EU or Appendix ECAA Extension of Stay, or has permission as a stateless person. See our pages on partner cases under EX.1 and parent cases under EX.1.

GEN.3.2 is wider and applies where the requirements are not met, including where EX.1 cannot help: an unmarried couple together for under two years who cannot yet meet the partner definition, or a suitability problem short of a mandatory refusal. Where there is a genuine and subsisting parental relationship with a qualifying child and it would be unreasonable for the child to leave, the guidance confirms the exceptional circumstances test will be met.

Leave outside the Immigration Rules is different again: a rare, discretionary grant, usually on compelling compassionate grounds that no rule covers, and not normally a route to settlement. The Home Office guidance on it sends Article 8 family life cases back to Appendix FM, where the exceptional circumstances test is built in, and the family life guidance prefers a GEN.3.2 grant to leave outside the Rules. We would only raise it if nothing inside the Rules fits your facts.

Evidence and Common Problems

GEN.3.2 is decided on the information you provide. The onus is on you to set out every exceptional circumstance relied on and to evidence each point. Typical evidence includes:

• proof of the relationship, cohabitation and each parent's role in a child's daily life
• the child's birth certificate, passport, school letters, medical records and professional reports
• independent medical evidence of any disability or serious illness, and of treatment available abroad
• evidence of why the family cannot lawfully live together elsewhere, with country information
• for GEN.3.1, evidence that the alternative income or support is genuine, credible and reliable

Common problems: arguing exceptional circumstances without first showing which standard requirements are met; a child's circumstances folded into a parent's statement rather than evidenced separately; unsupported assertions about the other country; and Family Court orders sent without permission to disclose.

How the Process Works

1. Free 15-minute consultation. We check whether you meet the five-year route and, if not, which of EX.1, GEN.3.1 or GEN.3.2 fits.
2. Case plan. We list every requirement not met, the exceptional circumstances relied on and the evidence needed for each family member.
3. Evidence gathering. You collect the documents on our checklist while we obtain reports and country information.
4. Application. You apply online on the relevant partner, parent or child form (in the UK, FLR(FP) for the 10-year partner or parent route), and we draft representations on proportionality and each child's best interests within that application.
5. Decision. If exceptional circumstances are accepted, leave to remain is normally granted for 30 months, or entry clearance for up to 33 months, on the 10-year route, usually with no recourse to public funds unless you show destitution, exceptional financial circumstances or child welfare reasons.
6. Next steps. We advise on extensions, access to public funds and any right of appeal.

When Legal Advice Is Especially Important

Get advice before you apply if your relationship is under two years old, if you are in the UK without leave or as a visitor, if there is a criminal record or a previous refusal, or if you are applying from a country your partner fled. A refusal adds to the immigration history the next decision maker will weigh.

Where a child is central, the wrong route sets the case back: a parent may be better placed under GEN.3.2 or EX.1 than on a private life application, and children with seven years' residence have their own route. If you cannot afford the fee, you may be able to make a fee waiver request first. This is open both to eligible applicants in the UK and, under the separate overseas affordability fee waiver policy, to eligible applicants seeking entry clearance under Appendix FM from abroad.

How RakLAW Solicitors Can Help

RakLAW Solicitors is an SRA regulated firm at 42 Shad Thames, London SE1, a short walk from Tower Bridge. Our human rights immigration team prepares Appendix FM applications that rely on exceptional circumstances. We do not take on legal aid work.

We identify the right provision, build the evidence for each family member and draft representations to the test the caseworker must apply. If refused, we advise on appealing a human rights refusal. Book a free 15-minute consultation on 0203 345 2000.