The Immigration Rules provide that somebody who wishes to stay in the UK on the basis of their family ties but does not otherwise meet the requirements of Appendix FM can argue that there are “exceptional circumstances”. Paragraph GEN.3.2.(2) says that:
…the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member…
But how do exceptional circumstances applications work in practice? To find out, I sat down with Free Movement contributor Gabriella Bettiga, a consultant solicitor who runs training courses with ILPA and HJT Training, in between sitting on the Tribunal Procedure Committee and chairing the costs and funding adjudicators at the Legal Aid Agency. The full interview is available as a podcast, which you can listen to in your browser or download (see links at the top of this post). Some of Gabriella’s exceptional circumstances top tips are transcribed below.
The first step is to take very clear instructions on the situation. You don’t want to be surprised down the line by something new. Often clients say “oh, you never asked me about such-and-such” whereas you think it’s obvious that they should have disclosed that information. Take the example of a couple, one of whom is British and the other not. I would ask first to see proof of the relationship, the history of the relationship etc. Did they have any previous relationships? Do they have any family abroad? Do they have any family here? Anybody with medical conditions? Do they have children, even from other relationships? Because, in that last example, one situation where you could be successful is where one party — especially the settled one — has a child from another relationship, they play an active part in the life of the child and it would be unreasonable to expect the other child to move to another country. So always ask about everybody else involved, to start with.
You also need information about the country where they’re supposed to go. Is there any reason they think they cannot go back? Obviously your client’s not going to be the expert for objective evidence on that country but they may have specific reasons why one or both of them cannot go back.
In terms of documentary evidence, some of it is the usual suspects. Again, if we’re talking about a couple, you would have proof of the relationship, of any children attending school and how well they’re doing, any medical evidence. Basically anything that the client tells you has to be backed up by evidence. It’s also important to be creative in terms of evidence. I remember a case where we had to prove that the client was living at a particular address at one point, so we ended up on Zoopla! It’s not something you’d think of immediately but you have to find ways to prove your point in any possible way.
There’s no magic number for how many documents to include, but I have a couple of rules. You have to include as much as possible to prove each point, and omit any document which doesn’t prove any point. Sometimes clients will come to you with a lot of paperwork and you have to sift through it. If you don’t need it for any reason, don’t put it in — it just confuses the matter.
The presentation of your application is very important. Prepare a clear bundle. In the body of your representations, refer to the specific tab of the bundle, indicating the documents you are using to prove your point. I would always include an index, divided into tabs. Everything has to be tidy — not just because you personally might be tidy-minded, but because if you put yourself in the shoes of a Home Office decision-maker, would you tackle a messy job first or would you prefer to start with something easy?
In Article 8 cases I can think of very few instances where you don’t need a statement. It doesn’t have to be too long, but it has to be relevant and address every possible objection the Home Office may have. So you have to guide your clients — don’t just let them write whatever they want! You know what needs to be explained. That said, the statement is the client’s voice, so it should be in their style, up to a point. It helps the person come out of the file of paper. I sometimes put in photographs of the clients and their family. Again, putting yourself in the shoes of the decision-maker, if they read the statement and see the people, I think that’s probably at least a little helpful for your case.
If you’re lucky enough to establish contact with a Home Office decision-maker, that’s excellent. It’s very rare, but it means that if they have any doubts about evidence etc, you can discuss it with them and maybe submit new evidence rather than them saying no. I have much more success in circumstances where I’ve managed to get hold of a human being.
You have to look at the big picture, see the whole situation and decide whether or not it’s reasonable for your clients to go back or do they need to stay here. But you also need to focus on some of the details, because sometimes you can win the case on one single document. I had a scenario where somebody had a very bad immigration history — not the strongest case, I wasn’t very hopeful. We found a specific medical issue showing that the client probably wouldn’t be able to board a flight. It was buried in a medical report and we had to dig it out and tell the medical expert to elaborate on that. That was our winning argument and limited leave was granted eventually.
But there’s no point in making an application that you know is going to fail. Before you throw all your energy into a hopeless application, think about whether there’s any other way for the client to remain in the country. Sometimes instead of a hopeless Appendix FM exceptional circumstances application, you can suggest leaving the country and applying for entry clearance if they meet the Rules. Everybody’s really scared to leave and apply from outside the UK, they think they will never come back, but sometimes it works. If they meet the Rules, that’s something clients should think about, rather than remaining here and wasting a lot of money, time and stress on something that’s not going to work.