As we have set out elsewhere, the Partner routes (including the Spouse Visa, Civil Partner Visa, Unmarried Partner Visa, Fiance Visa and Proposed Civil Partner Visa) and Parent route of Appendix FM of the Immigration Rules all contain strict eligibility requirements for a grant of leave to remain on a 5-year route to settlement. However, the Immigration Rules also provide for certain exceptions to these strict requirements and, where an exception applies, applicants who do not qualify for the 5-year route to settlement as a Partner or Parent may be granted permission to stay on a 10-year route to settlement instead.
In this post we look at the exceptions within Appendix FM and examine how individuals who are unable to meet the strict requirements of the 5-year Partner and Parent routes may be able to rely on these exceptions to extend their stay, and ultimately settle, in the UK.
What are the Exceptions in Appendix FM?
The exceptions to the strict 5-year route Partner or Parent requirements are set out in Section EX.1. of Appendix FM of the Immigration rules. They apply when a Partner or Parent has failed to meet certain eligibility requirements for leave to remain under the 5-year route.
You may be able to rely on an exception if you do not meet the financial, accommodation, English language or Immigration Status requirements of Appendix FM.
Partners and parents may still be entitled to leave to remain due to their right to private and family life, under Article 8 of the European Convention on Human Rights (ECHR).
What is the Appendix FM Exception for Partners?
A partner must show that they have a genuine and subsisting relationship with their partner, and that they would face ‘insurmountable obstacles' to family life continuing outside the UK. According to paragraph EX1 of Appendix FM:
EX.1. This paragraph applies if…
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave, or humanitarian protection, in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), or in the UK with limited leave as a worker or business person under Appendix ECAA Extension of Stay in accordance with paragraph GEN.1.3.(e), and there are insurmountable obstacles to family life with that partner continuing outside the UK.
What are Insurmountable Obstacles?
Section EX.2. of Appendix FM defines ‘insurmountable obstacles' to family life continuing outside the UK:
EX.2. For the purposes of paragraph EX.1.(b) “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.
Essentially, an Applicant must satisfy that there would be very significant difficulties in continuing their family life with their partner outside the UK. The Applicant must prove that these very significant difficulties cannot be overcome, or that they would create very serious hardship.
You can find more information on the meaning of ‘insurmountable obstacles' in our previous post here.
What is the Parent Exception?
A parent must prove that their parental relationship with the qualifying child is genuine and subsisting, and that it is unreasonable for the child to leave the UK, taking into account the best interests of the child as a primary consideration. The test is one of reasonableness. According to paragraph EX1 of Appendix FM:
EX.1. This paragraph applies if
(i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and
(ii) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK;
Examples of relevant considerations for this test are as follows:
- Whether the parent(s) or child has citizenship in any other country and if they are able to enjoy full rights;
- Whether the parent(s) or child has existing family, social, or cultural ties with the country and if there are wider family or relationships with friends or community overseas that can provide support;
- Whether the child is dependent on or requires support from wider family members in the UK in important areas of their life;
- Whether the parent(s) or child has lived in or visited the country for more than a few weeks;
- Any exposure to and level of understanding of that country's culture;
- Whether the parent(s) or child can competently speak, read and write in the language of that country, or are likely to achieve this in a reasonable time period;
- Whether removal of the child involves significant risks to their health; and
- Whether both parents are expected to leave the UK.
Can Applicants Apply Under Both the Parent and Partner Exceptions?
The Home Office's position on whether applicants can apply for both routes can be found in the Home Office Guidance “Family life (as a partner or parent) and exceptional circumstances” (Version 18.0, published on 25 July 2019).
The Home Office guidance states that an applicant being considered under the exceptions must meet the requirements set out at either EX.1.(a) or EX.1.(b). “They do not have to meet both (a) and (b)”.
The guidance states in regard to the parent route:
“An applicant being considered under the 10-year parent route must meet the requirements set out at EX.1.(a). They cannot meet (b) because those who seek to remain as a parent cannot be eligible to apply as a partner.”
In essence, an Applicant who is eligible under both the parent and partner route can choose which route they would like to apply under. Both do not have to be proven to be met. As previously stated, the parent route is easier to satisfy, and therefore if an Applicant is eligible under both, it is usually preferable to pursue EX.1.(a).
What Happens if the Home Office Agrees That Paragraph EX1 Applies?
If the requirements in EX.1(a) are met and the applicant meets all the other requirements of paragraph R-LTRPT.1.1.(a), (b) and (d), the applicant will be granted limited leave to remain under the 10-year route to settlement (rather than the 5-year route). Paragraph R-LTRPT.1.1. includes both the suitability requirements set out at paragraph R- LTRPT.1.1.(d)(i) and the eligibility requirements set out at paragraph R- LTRPT.1.1(d)(ii).
If the requirements in EX.1.(b) are met and the applicant meets all the other requirements of paragraph R-LTRP.1.1(a), (b) and (d), then they will be granted limited leave to remain under the 10-year route to settlement (rather than the 5-year route). Paragraph R-LTRP.1.1 includes both the suitability requirements set out at paragraph R- LTRP.1.1.(d)(i) and the eligibility requirements set out at paragraph R- LTRP.1.1(d)(ii).
The parent or partner will normally be granted leave to remain for a period of 30 months, with scope to qualify for settlement as a partner or parent after 10 years.
What Happens if the Home Office Finds That Paragraph EX1 Does Not Apply?
If EX.1.(a) or EX.1.(b) cannot be met then the application should be considered under paragraph GEN.3.2. of Appendix FM. There should be an assessment under ECHR Article 8 grounds as whether exceptional circumstances exist and if a refusal will result in unjustifiably harsh consequences.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.