Appendix FM Exceptional Circumstances: When Rules Can Be Waived

Three provisions, doing three different things

"Exceptional circumstances" is used loosely to mean any argument outside the Rules. Appendix FM is more precise than that, and which paragraph applies changes both the test and the consequence.

GEN.3.1 — the financial requirement only

It has two conditions, and both must be met:

• the financial requirement applies and "is not met from the specified sources referred to in the relevant paragraph"; and
• "it is evident from the information provided by the applicant that there are exceptional circumstances which could render refusal ... a breach of Article 8 ... because such refusal could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child".

Where both apply, the decision-maker must consider whether the financial requirement is met by taking into account the extra sources at paragraph 21A of Appendix FM-SE, set out below. GEN.3.1 is therefore not a waiver of the financial requirement. It is a wider set of ways to satisfy it.

GEN.3.2 — the general provision

Where an application "does not otherwise meet the requirements of this Appendix or Part Suitability", the decision-maker must consider whether there are exceptional circumstances which would render refusal a breach of Article 8, because refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child, or another family member whose Article 8 rights would evidently be affected.

Note the wording shifts from GEN.3.1's "could" to GEN.3.2's "would", and that GEN.3.2 reaches a wider group of affected people.

GEN.3.3 — children

Under either provision, "the decision-maker must take into account, as a primary consideration, the best interests of any relevant child". GEN.3.3(2) defines a relevant child as a person who is under 18 at the date of the application and who, from the information provided, would be affected by a refusal. The statutory source of that duty is section 55 of the Borders, Citizenship and Immigration Act 2009.

The extra financial sources under paragraph 21A

Where GEN.3.1(1) applies, paragraph 21A(2) of Appendix FM-SE adds three sources to the ordinary list:

• a credible guarantee of sustainable financial support to the applicant or their partner from a third party;
• credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or
• any other credible and reliable source of income or funds available at the date of application, or which will become available during the period of limited leave applied for.

These are exactly the things paragraph 1(b) and 1(c) otherwise exclude: third-party support, and prospective earnings. Paragraph 21A(4) puts the onus on the applicant to satisfy the decision-maker of "the genuineness, credibility and reliability" of the source.

What is checked

A loan does not count under paragraph 21A(5), unless it is a mortgage on a UK or overseas property already owned at the date of application by the applicant, their partner, or the guaranteeing third party; provided by a financial institution regulated by the appropriate body for that country; and with payments that are reasonably affordable and likely to remain so.

For a third-party guarantee, paragraph 21A(8)(a) lists what the decision-maker considers: verifiable documentary evidence of the guarantee; whether it is signed, dated and witnessed or otherwise independently verified; whether the third party has given enough evidence of their own financial situation to show the support is likely to continue; evidence of any support they have already provided; how much of the requirement rests on it; and the likelihood of a change in their circumstances or in their relationship with the couple.

For prospective earnings, paragraph 21A(8)(b) requires that at the date of application there is a specific offer of employment or a clear basis for self-employment, expected to start within three months of arrival in the UK for an entry clearance application, or within three months of the date of application for permission to stay — with documentary evidence on headed paper, signed, dated and witnessed or independently verified, including a contract of employment or, for self-employment, a contract for goods or services, a partnership or franchise agreement, a licence application, or details of business premises.

Savings relied on under 21A(2)(c) must be in the name and under the control of the applicant, their partner, or both, at the date of application, and must still be enough to satisfy the savings formula — though the ordinary 6-month holding requirement at paragraphs 11 and 11A gives way to the criteria in 21A(8)(c).

Paragraph EX.1, which is a different thing again

EX.1 is named inside the eligibility paragraphs for permission to stay — E-LTRP.3.1, E-LTRP.3.4 and others — as an exception to specific requirements. It applies where either:

• EX.1(a): the applicant has a genuine and subsisting parental relationship with a child who is under 18 (or was when the applicant was first granted leave on this basis), is in the UK, and is a British citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application — and, taking their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK; or
• EX.1(b): the applicant has a genuine and subsisting relationship with a partner in the UK who is a British citizen, settled, has protection status, has limited leave under Appendix EU or under Appendix ECAA Extension of Stay, or has permission as a stateless person — and there are insurmountable obstacles to family life with that partner continuing outside the UK.

Paragraph EX.2 defines that last phrase:

"‘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."

EX.1 appears only in the leave-to-remain paragraphs. It is not available on an application for entry clearance from outside the UK, where GEN.3.1 and GEN.3.2 are the route.

GOV.UK states the same two grounds in plain terms on its family visa page: an application may still be possible where "you have a child in the UK who is a British or Irish citizen or has lived in the UK for 7 years and it would be unreasonable for them to leave the UK", or where refusal "would breach your human rights".

The consequence: ten years, not five

This is the part most often left out, and it changes the shape of the next decade.

An applicant who meets the requirements in the ordinary way is granted under paragraph D-ECP.1.1 or D-LTRP.1.1, and is "eligible to apply for settlement after a continuous period of at least 60 months in the UK".

Where GEN.3.1(2) or GEN.3.2(3) applies, the grant is under D-ECP.1.2 or D-LTRP.1.2 instead. The period of permission is the same — up to 33 months, or 30 on an in-country grant — but eligibility for settlement comes "after a continuous period of at least 120 months in the UK".

GOV.UK says the same thing from the other end: "If you do not meet the financial requirements, the earliest you'll be able to apply to settle is after 10 years in the UK." Settlement on that basis is under Appendix Settlement Family Life, which has no financial requirement of its own. Our settlement entry covers both routes.

Public funds on a grant of this kind

A grant under D-ECP.1.2 or D-LTRP.1.2 carries a no recourse to public funds condition "unless the decision-maker considers, with reference to paragraph GEN.1.11A., that the applicant should not be subject to such a condition". GEN.1.11A is the route by which that condition is lifted where the decision-maker is satisfied of the circumstances it sets out. Our public funds entry covers the change of conditions application.

What the provisions ask for

Both GEN.3.1 and GEN.3.2 turn on what is "evident from the information provided by the applicant". The decision-maker is not required to go looking. Whatever is said to be exceptional has to be in the application, and evidenced.

What that means in practice follows from the tests themselves rather than from any published checklist: evidence going to the difficulties of continuing family life outside the UK, to any relevant child's circumstances and best interests, and — where GEN.3.1 is in play — to the genuineness, credibility and reliability of each source of funds under the paragraph 21A criteria above.

Rowan sets out what the Rules say and does not assess individual cases or predict outcomes. Applications engaging these paragraphs turn on legal argument as much as on documents; GOV.UK maintains a service to find a regulated immigration adviser, and advisers are regulated by the Immigration Advice Authority, which replaced the Office of the Immigration Services Commissioner on 16 January 2025.

Related entries

• The financial requirement
• A child born in the UK
• Challenging circumstances in relationships
• After a refusal
• The Victim of Domestic Abuse route

Questions and answers