Exceptional circumstances - what does the new changes mean since 10th August 2017 - ICS Legal Blog

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Exceptional circumstances – what does the new changes mean since 10th August 2017

Exceptional circumstances. Where such exceptional circumstances exist, the decision-maker must go on to consider whether the minimum income requirement is met if other credible and reliable sources of income, financial support or funds available to the couple are taken into account. Those sources, and matters to which the decision maker should have regard when assessing their genuineness, credibility and reliability, are set out in paragraph 21A of Appendix FM-SE. The threshold of such exceptional circumstances (which must be met before other credible and reliable sources of income, financial support or funds can be taken into account) is a high one.

Where the decision-maker is satisfied, based on the information provided by the applicant, that there are exceptional circumstances which could render refusal of the application a breach of Article 8, the decision-maker should consider whether the applicant has provided evidence of ability to meet the minimum income requirement through other sources. If the applicant has not already done so, the decision-maker should contact the applicant (or their legal representative) in writing requesting that they provide information and evidence in writing of any other credible and reliable source(s) of income, financial support or funds available to the couple which enables the minimum income requirement to be met. Such sources can be in addition to, or in place of, the sources of income or funds on which the application initially relied. The decision-maker should request that the information be provided within 21 days of the date of the request.

The other source(s) of income, financial support or funds must enable the minimum income requirement to be met for entry clearance or leave to remain to be granted on this basis. Paragraph 21A of Appendix FM-SE then sets out, in sub-paragraph (8), objective criteria by which the decision-maker will determine the genuineness, credibility and reliability of the other sources of income, financial support or funds. The decision-maker must consider, in light of all the information and evidence provided by the applicant, how far these criteria are met. They are not exhaustive, or necessarily determinative: rather, the decision-maker must consider each case in the round in light of its individual circumstances, bearing in mind the information and evidence provided by the applicant. Thus, the decision maker should not refuse to accept a source which they are otherwise satisfied is genuine, credible and reliable simply because none (or few) of the relevant criteria are met. But, generally speaking, the more the relevant criteria are met, the more likely the decision-maker will be to determine that the source in question is genuine, credible and reliable, such that it should be counted towards the minimum income requirement.