UI-2025-003967

• Status of case: Unreported
• Hearing date: 15 Dec 2025
• Promulgation date: 13 Mar 2026
• Publication date: 02 Apr 2026
• Last updated on: 02 Apr 2026

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003967
First-tier Tribunal No: HU/61779/2023
LH/06957/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 13th March 2026

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

MOHAMMED HAMZA
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Muman of Counsel, instructed by Legal Rights Partnership
For the Respondent: Mr E Terrell, Senior Home Office Presenting Officer

Heard at Field House on 15 December 2025


DECISION AND REASONS

1. The appellant appeals against a decision of a Judge of the First-tier Tribunal (‘the judge’) dismissing his appeal against the respondent’s refusal dated 20 September 2023 of his application for entry clearance.

Background

2. The appellant applied for entry clearance as the spouse of a British citizen. The respondent refused the application on the basis that the appellant did not satisfy the financial requirements of the Immigration Rules and there were no exceptional circumstances requiring a grant of leave under Article 8 ECHR.

3. The appellant appealed to the First-tier Tribunal. At a hearing on 22 January 2023, the respondent raised an additional challenge to the genuineness and subsistence of the appellant’s relationship with his sponsor, and the matter was adjourned. Following a hearing on 21 May 25, the judge dismissed the appellant's appeal. She accepted that the couple were in a genuine and subsisting relationship [17] but declined to take into account alternative sources of income, because she had not found unjustifiably harsh consequences of refusal [28]. She found the proposed alternative source to be speculative in any event [28}-[29]. Consequently, the judge found refusal to be proportionate [33].

4. The appellant appealed on the following grounds: the judge failed to consider the appellant’s submissions on the meaning and application of GEN.3.1(b); consequently, the judge misapplied GEN.3.1, failing to appreciate the difference in threshold from that in GEN.3.2; it was perverse to find the sponsor’s offer of employment speculative; the judge distinguished on an erroneous basis the unreported case relied upon by the appellant, and failed in any event to consider the best interests of the sponsor’s children; and, the judge failed to consider relevant factors when assessing Article 8 outside the Immigration Rules. Permission to appeal was granted by the Upper Tribunal on renewal on 11 September 2025.

Submissions

5. The representatives made oral submissions on the basis of skeleton arguments recently filed and served. Whilst I refer below only to those matters necessary to understand my decision, I took the written and oral submissions into account in their entirety.

6. The appellant has in his skeleton distilled his 5 grounds of appeal into three: the judge erred in her construction of GEN.3.1; the judge’s finding that the possibility of the sponsor’s change of employment to full-time hours was speculative was not one open (or fairly open) to her; and, the judge did not consider or properly consider the Article 8 rights of the sponsor and children and/or the latter’s best interests.

7. These, I agree, are a more useful approach to the case, and so I shall deal with the appeal on that basis.

The Appellant’s Case

8. The appellant’s case in a nutshell is that the judge wrongly required him to show that unjustifiably harsh consequences would in fact follow a failure to consider alternative sources of funding, wrongly rejected satisfactory evidence of his ability to meet the financial requirements through alternative sources of funding, and failed to consider the statutory and Convention rights of all affected family members.

9. Not only was it clear from SSHD v Khera [2025] EWCA Civ 1571 that the judge thus applied too high a standard of proof on the point, but also the correct test (a realistic possibility) imposed a very low threshold. This meant that the test would inevitably be met where British children were affected by the decision (and almost always met when a British spouse was affected).

10. It is further submitted that the Court of Appeal’s conclusions in Khera required clarification. It was submitted that, without such clarification, following literally the flowchart approach identified in Khera meant requiring an individual who could satisfy the financial requirements via alternative sources of funding to establish nevertheless the probability of a breach of Article 8 in order to succeed. That was not what could possibly have been intended by either the Court of Appeal or the Rules. As it was, in the appellant’s case, the evidence of the sponsor and children’s circumstances clearly established such a likelihood.

11. As for the judge’s finding in the alternative that the offer of full-time employment was speculative, it was submitted that she had before her reliable evidence (existing at the time of the respondent’s decision) that the sponsor could take up on the appellant’s arrival full-time work sufficient to meet the financial threshold. It was unfair to doubt the reliability of the offer when the point had not been taken by the respondent and not challenged in cross-examination. It was unreasonable to hold against the appellant the lack of a specific start date when the offer of full-time employment was contingent on the appellant's presence in the United Kingdom. The question of whether the sponsor had or had not already sought child-care assistance was irrelevant to the issue (and had been addressed in evidence in any event) and the judge’s interpretation of the appellant’s evidence on the point was unreasonable.

12. In respect of ground 3, the appellant argued that the judge misdirected herself in treating his failure to meet the Immigration Rules as a ‘weighty factor’, failed to take into account the sponsor’s real world ability to support the appellant, failed to appreciate the public interest in reducing the sponsor’s reliance on public funds if able to increase her salary with the appellant’s support, and applied an ‘unduly harsh consequences’ test, rather than one of striking a ’fair balance’. Furthermore, the judge considered only the Article 8 rights of the appellant and not his affected family members. Even if required to establish that unjustifiably harsh consequences would follow refusal, the appellant met that threshold.

The Respondent’s Case

13. The respondent complains that the grounds advance arguments for which permission to appeal was not given. Specifically, ground 1 has been reformulated in light of Khera, and ground 2 alleges for the first time that the judge failed to have regard to relevant evidence.

14. Answering the arguments for which the appellant had been granted permission to appeal, it was submitted that Khera disposed of the issue of which test was to be applied under GEN.3.1: there must be a real possibility of unjustifiably harsh consequences. However, whilst this was a lower threshold, it was only slightly lower. The criticisms made by the appellant of that judgment were obscure and were not in any event material to this appeal. As it was, no case was advanced which the judge which could properly have found to establish more than a mere possibility of unjustifiable harshness, that the decision might cause the family to leave the United Kingdom. The judge was entitled to find that a ‘generic’ point and that no such risk was established on the evidence. There were no good grounds to conclude that the judge failed to take into account relevant evidence.

15. Turning to ground 2, the respondent submits that she raised the reliability of the offer of alternative income in her review. There was no requirement to cross-examine on a point which turned in essence on documentation. The appellant was in any event on notice of the need to address the point herself. It was rationally open to the judge to find the offer contingent on a change of circumstances.

16. As for ground 3 and the judge’s Article 8 and s55 assessment, the judge was correct to treat the appellant’s failure to meet the Immigration Rules as a weighty factor. Again, there was no good basis to conclude that the judge failed to take into account relevant evidence. The judge had not been persuaded that the appellant’s entry into the United Kingdom would result in the minimum income requirement being met. There were no good grounds to conclude that judge was unaware of the need to strike a fair balance between the appellant’s and public’s competing interests, let alone that she failed to do so, and no good grounds to conclude that she did not take the sponsor’s and children’s rights into account.

The Alleged Change in the Appellant’s Position

17. Insofar as ground 1 challenges the judge’s failure to apply a ‘real risk’ test of unjustifiably harsh consequences under GEN.3.1 (whereas before the challenge was the judge’s failure to consider whether there was a mere possibility of such consequences), it was agreed at the hearing that even if permission to amend the grounds of appeal was necessary such permission should be given. As it is, I am not persuaded that the reformulation constitutes a material change to the grounds of appeal. The challenge was and remains that the judge applied too high a threshold for when it was permissible to consider alternative sources of funding.

18. As for the argument that the judge failed to take into account relevant evidence regarding the reliability of the sponsor’s offer of full-time employment, it is fair to say that the argument could have been more explicitly sign-posted in the grounds of appeal; however, reading paragraphs 24 and 25 of the grounds of appeal together, it is tolerably clear that the argument is being made. Consequentially, again I do not consider that any amendment application is necessary. In any event, the respondent was more than able to meet the argument in her skeleton argument and so is not prejudiced by my consideration of all of the arguments made on the appellant’s behalf. Therefore, to the extent that permission is necessary to amend the grounds of appeal to reflect the above arguments, I give permission.

The Law

The Applicable Immigration Rules

19. Under the heading ‘Exceptional Circumstances’, paragraphs GEN.3.1, GEN.3.2 and GEN.3.3 of Appendix FM of the Immigration Rules in force at the date of the respondent’s decision provide as follows:

‘GEN.3.1.(1) Where:

(a) the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1. (in the context of an application for limited leave to remain as a partner), E-ECC.2.1. or E-LTRC.2.1. applies, and is not met from the specified sources referred to in the relevant paragraph; and

(b) it is evident from the information provided by the applicant that there are exceptional circumstances which could render refusal of entry clearance or leave to remain a breach of Article 8 of the European Convention on Human Rights, because such refusal could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child; then

the decision-maker must consider whether such financial requirement is met through taking into account the sources of income, financial support or funds set out in paragraph 21A(2) of Appendix FM-SE (subject to the considerations in sub-paragraphs (3) to (8) of that paragraph).

(2) Where the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1. (in the context of an application for limited leave to remain as a partner), E-ECC.2.1. or E-LTRC.2.1. is met following consideration under sub-paragraph (1) (and provided that the other relevant requirements of the Immigration Rules are also met), the applicant will be granted entry clearance or leave to remain under, as appropriate, paragraph D-ECP.1.2., D-LTRP.1.2., D-ECC.1.1. or D-LTRC.1.1. or paragraph 315 or 316B of the Immigration Rules.

GEN.3.2.(1) Subject to sub-paragraph (4), where an application for entry clearance or leave to enter or remain made under this Appendix, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of this Appendix or Part 9 of the Rules, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply.

(2) Where sub-paragraph (1) above applies, 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 whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.

(3) Where the exceptional circumstances referred to in sub-paragraph (2) above apply, the applicant will be granted entry clearance or leave to enter or remain under, as appropriate, paragraph D-ECP.1.2., D-LTRP.1.2., D-ECC.1.1., D-LTRC.1.1., D-ECPT.1.2. or D-LTRPT.1.2.

(4) This paragraph does not apply in the context of applications made under section
BPILR or DVILR..1.1

GEN.3.3.(1) In considering an application for entry clearance or leave to enter or remain where paragraph GEN.3.1. or GEN.3.2. applies, the decision-maker must take into account, as a primary consideration, the best interests of any relevant child.

(2) In paragraphs GEN.3.1. and GEN.3.2., and this paragraph, “relevant child” means a person who:

(a) is under the age of 18 years at the date of the application; and

(b) it is evident from the information provided by the applicant would be affected by a decision to refuse the application.’

20. Paragraph 21A of Appendix FM-SE, insofar as it is relevant to applications relying on prospective earnings from employment provides as follows:

‘21A(1). Where paragraph GEN.3.1.(1) of Appendix FM applies, the decision-maker is required to take into account the sources of income, financial support or funds specified in sub-paragraph (2).

(2) Subject to sub-paragraphs (3) to (8), the following sources of income, financial support or funds will be taken into account (in addition to those set out in, as appropriate, paragraph E-ECP.3.2., E-LTRP.3.2., E-ECC.2.2. or E-LTRC.2.2. of Appendix FM):
…
(b) credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner;
…
(4) The onus is on the applicant to satisfy the decision-maker of the genuineness, credibility and reliability of the source of income, financial support or funds relied upon, on the basis of the information and evidence provided, having regard (in particular, but without limitation) to the factors set out below.
…
(8) In determining the genuineness, credibility and reliability of the source of income, financial
support or funds relied upon under sub-paragraph (2), the decision-maker will take into
account all the information and evidence provided, and will consider (in particular):
…
(b) in respect of prospective earnings from sustainable employment or self-employment of the applicant or their partner:

(i) whether, at the date of application, a specific offer of employment has been made, or a clear basis for self-employment exists. In either case, such employment or self-employment must be expected to commence within three months of the applicant’s arrival in the UK (if the applicant is applying for entry clearance) or within three months of the date of application (if the applicant is
applying for leave to remain);

(ii) whether the applicant has provided verifiable documentary evidence of the offer of employment or the basis for self-employment, and, if so, whether that evidence:

(aa) is on the headed notepaper of the company or other organisation offering the employment, or of a company or other organisation which has agreed to purchase the goods or services of the applicant or their partner as a self-employed person;

(bb) is signed, dated and witnessed or otherwise independently verified;

(cc) includes (in respect of an offer of employment) a signed or draft contract of employment;

(dd) includes (in respect of self-employment) any of a signed or draft contract for the provision of goods or services; a signed or draft partnership or franchise agreement; an application to the appropriate authority for a licence to trade; or details of the agreed or proposed purchase or rental of business premises;

(iii) whether, in respect of an offer of employment in the UK, the applicant has provided verifiable documentary evidence:

(aa) of a relevant employment advertisement and employment application;

(bb) of the hours to be worked and the rate of gross pay, which that evidence must establish equals or exceeds the National Living Wage or the National Minimum Wage (as applicable, given the age of the person to be employed) and equals or exceeds the going rate for such work in that part of the UK; and

(cc) which enables the decision-maker to assess the reliability of the offer of employment, including in light of the total size of the workforce and the turnover (annual gross income or sales) of the relevant company or other organisation;

(iv) whether the applicant has provided verifiable documentary evidence that at the date of application, the person to be employed or self-employed is in, or has recently been in, sustained employment or self-employment of the same or a similar type, of the same or a similar level of complexity and at the same or a similar level of responsibility;

(v) whether the applicant has provided verifiable documentary evidence that the person to be employed or self-employed has relevant professional, occupational or educational qualifications and that these are recognised in the UK;

(vi) whether the applicant has provided verifiable documentary evidence that the person to be employed or self-employed has the level of English language skills such prospective employment or self-employment is likely to require;

(vii) the extent to which this source of income is relied upon by the applicant to meet the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1., E-ECC.2.1. or E-LTRC.2.1. of Appendix FM (as applicable); and

(viii) where an offer of employment is relied upon, and where the proposed employer is a family member or friend of the applicant or their partner, the likelihood of a relevant change in that relationship during the period of limited leave applied for.’

21. The proper application of GEN.3.1 (and GEN.3.2) was recently considered by the Court of Appeal in SSHD v Khera [2025] EWCA Civ 1571 at [34] – [39]:

‘34. The financial eligibility provisions incorporated into the IR require applicants for entry clearance to show evidence of sufficient means and are justified upon the basis that applicants with sufficient economic resources are less likely to be a burden on the state and better able to integrate into society: see section 117B(3) Nationality, Immigration and Asylum Act 2002, and Rhuppiah paragraph [20]. As was made clear in MM (Lebanon) it was also legitimate for the state to prioritise simplicity of operation within the IR. Some applicants will satisfy all requirements for entry clearance save for the financial requirements but have available to them reliable alternative sources of income. A refusal of entry clearance without considering those alternatives risks breaching Article 8. To address this risk, as identified in MM (Lebanon), paragraphs GEN 3.1 and 3.2 were added to Appendix FM.

35. It is helpful to place the operation of these rules into the context of the scheme as a whole. Standing back the scheme works in the following way. First, an applicant who seeks clearance upon the basis of family rights must meet eligibility requirements laid down by the state over which the state has a broad margin of discretion. These requirements might include financial sustainability thresholds. Prima facie, an applicant is required to demonstrate financial resilience from that person’s own resources. However, as an exception the state might accept proof from third sources. The state is entitled to assume that where the resources come from a third source their intrinsic reliability might not be as strong as when they come from the applicant and that there is an administrative burden which lies in verifying what, by their nature, might be less clear and certain sources of income and resource. Nonetheless, if the state ignores third party resources there is risk that an applicant’s Article 8 rights will be breached. Some sort of a risk assessment therefore needs to be undertaken to decide whether a refusal to open the procedural door to consideration of third source financial information would lead to a violation of Article 8. This is the “could” in GEN 3.1(b) and relates to the risk of breach if clearance is not given which then justifies resort to this source information.

36. The Secretary of State points out, and accepts, I think correctly, that because “could” implies a lower threshold that “would” there is a possibility that an applicant will be granted clearance on a slightly lower threshold test. This is not problematic because “could” still performs an important and substantive human rights balancing role between the individual and the state and, furthermore, the policy objectives of the state are in fact met because, even if in theory the applicant has obtained clearance on a slightly attenuated basis, the applicant still meets the state’s eligibility requirements, albeit by a circuitous route. What happens if clearance is refused? If no recourse is made to third source information, or if on analysis the material is insufficient, this does not necessarily mean that clearance is refused. Paragraph GEN 3.2 is then engaged and the ECO must consider whether refusal “would” violate Article 8. At this juncture the “would” implies a higher threshold than “could” and, again, serves to strike the balance between the state and the individual.

37. It follows that GEN 3.1 and 3.2 should be read together and in their collective effect provide the means whereby a proper balance is struck between the important and legitimate right of the state to control entry and set appropriate eligibility requirements and any competing private, family interests of the applicant under Article 8.

38. It is possible to break down the questions that need to be answered under the combined effect of GEN 3.1 and 3.2:

Paragraph GEN 3.1

i) Assuming all other relevant eligibility requirements are met does an applicant for entry clearance on the basis of family life meet the financial eligibility requirements? If the answer is “yes”, clearance is granted.

ii) If the financial requirements are not met is it: (i) evident, (ii) from the information provided by the applicant that (iii) there are (extant) (iv) (exceptional) circumstances which (v) could render refusal of entry clearance or leave to remain a breach of the applicant or their family’s Article 8 rights?

iii) If the answer is “yes”, can relevant financial requirements be satisfied by assessing the extraneous sources of income (as set out in paragraph 21A(2) of Appendix FM-SE)?

iv) If “yes”, clearance must be granted. If “no”, the applicant will not be granted clearance under paragraph GEN 3.1, but might be under paragraph GEN 3.2.

Paragraph GEN 3.2

i) Does an applicant for entry clearance on the basis of family life fail to satisfy relevant (financial or other) requirements under the Immigration Rules (including the provisions of GEN 3.1)?

ii) If “yes”, is it the case that: (i) on the basis of the information provided by the applicant (ii) there are (extant) (iii) (exceptional) circumstances which (iv) would render refusal or entry clearance or leave to remain a breach of the applicant or their family’s Article 8 rights?

iii) If “yes”, clearance must be granted. If “no”, the applicant will not be granted clearance.

39. In view of the above the following points can be made about the relevant language:

i) “are”: This word is found in both paragraphs GEN 3.1 and GEN 3.2. It indicates that the circumstances which give rise to the risk (“could” or “would”) of an Article 8 violation are extant ie current. It precludes the possibility that the circumstances are hypothetical ie a mere possibility

ii) “it is evident” and “consider on the basis of”: The expression “it is evident from the information provided by the applicant”, is found in paragraph GEN 3.1, but not in paragraph GEN 3.2, which uses the expression “consider on the basis of the information provided by the applicant”1. It is unclear whether these two formulations are intended to convey different meanings. In relation to GEN 3.1, there was some discussion during the appeal as to whether, for information to be “evident”, an applicant had to submit full information on alternative sources of finance in their application. A word of caution is required. What, for instance, is the position if the application is (say) 90% complete and hence contains limited gaps in the requisite information? Must an ECO refuse clearance even though the information could otherwise have been obtained and the gap plugged? Given that the overall aim of these rules is to ensure compliance with Article 8, such an end result might not be proportionate.2

iii) “exceptional”: As to the expression “exceptional” in relation to “circumstances” this is found in both GEN 3.1 and GEN 3.2 and relates to the existence of a risk of a breach of Article 8. However, in each it plays a different role. In GEN 3.1 it operates to open the door to recourse to the consideration of third source financial information. In GEN 3.2 it is more basic and opens the door to a positive Article 8 outcome for the applicant. On one view the phrase presupposes that there are some circumstances which would otherwise warrant recourse to third source material, or to a positive Article 8 outcome, but which options are precluded because the extant (triggering) circumstances do not meet the high threshold of being “exceptional”. In such a case a risk might arise that there were cases where there was a possibility of an Article 8 violation arising but which did not serve to entitle the ECO to consider third source material or grant clearance to obviate that risk. This does not seem consistent with the principle articulated in MM (Lebanon) which the new rules were seeking to protect, namely the striking of a fair Article 8 balance between state and individual. The expression “exceptional circumstances” has been in relatively long use in Government guidance. It was considered in MM (Lebanon) where, at paragraphs [22]-[24], the Court explained that the phrase was intended to equate to the circumstances where Article 8 would be breached. In other words it was not intended to define a sub-category of Article 8 case where clearance would be granted which was to be differentiated from other cases where Article 8 applied but where, notwithstanding, no clearance would be granted. In this sense the expression conveys the message that cases where the circumstances might reach the Article 8 threshold will, as a matter of law, be rare – “exceptional”; but nothing more than this. It neither adds nor detracts from the substantive content of Article 8. On the evidence in this case, nothing turns upon the meaning of “exceptional”. This is because not only were there no “exceptional circumstances” found to exist but, critically, there was nothing in the facts that could give rise to a breach of Article 8 irrespective of whether the extant circumstances of the Respondent or his family were exceptional.

iv) “could”: It is common ground that, linguistically, “could” implies a lower threshold than “would”. The word “could”, in relation to the risk of a breach of Article 8, serves to trigger or engage a procedural right, namely to have the ECO look to alternative sources of finance. It is expressed in the contingent form of “could” because at the point in time at which it is engaged the ECO does not know whether or not the alternative information will, as a matter of fact, suffice as a replacement for information relating to the applicant’s own sources of finance. It is only after the information has been reviewed that the “would” question is capable of being answered. I would accept the submissions of both the Secretary of State and the Respondent that “could” means “real risk” or “realistic possibility”. It is unnecessary to determine this appeal to go further and to consider how this test might play out on various fact permutations. No one however argues that “real possibility” means a “mere”, theoretical, possibility which was the position of the UT.

v) “unjustifiably harsh consequences”: The reference to the resulting “unjustifiably harsh consequences” is understood as a restatement of the circumstances in which Article 8 rights will have been breached.

1 Albeit that under paragraph GEN 3.2 the ECO does need to consider the rights of those in respect of whom the effect of the decision upon such rights is “evident”.
2 It appears that the ECO must have been provided evidence of Mr Khera’s income at the time of the application but the ECO Decision does not refer to the Respondent’s savings. The implication is that the evidence of those savings and of Mr Khera’s newer, higher, salary was provided only during the FtT proceedings: cf paragraph [27] of the FtT decision.’

The Appellant’s Submissions on Khera

22. Mr Muman submits that, properly recognising that the reason for implementation of GEN.3.1 was the decision in R (MM (Lebanon)) v SSHD [2017] 1 WLR 771, [2017] UKSC 10, the trigger for consideration of alternative sources of funding is a risk not just of unjustifiably harsh consequences but more broadly the risk of failing to strike a fair balance between the individual’s and the state’s interests.

23. He further submits that the test of whether a breach of Article 8 ‘could’ result imports a very low threshold. The Supreme Court in MM declared that the Immigration Instructions, as they stood at the time of those proceedings, failed unlawfully to take proper account of the prospective income of the sponsor’s spouse or partner and of prospective sources of income from third parties. That illegality arose from the systematically unlawful exclusion of such sources from consideration. GEN.3.1 was implemented to remedy that defect. Consequently, GEN.3.1 was intended to facilitate consideration of other sources of funding in all or almost all cases in order to avoid breaches of Article 8, ‘said breach to arise by applying a rigid rule or instruction which prevents caseworkers from taking into account alternative sources of funding’ (paragraph 41 of the appellant’s skeleton argument).

24. Mr Muman invites me to ‘clarify’ Green LJ’s observation at [39(iv)] that it is only after consideration of any funding sources permitted on meeting the ‘could’ test that the question of whether a breach of Article 8 ‘would’ result can be answered. He submits that there exists the danger that, taken literally, a caseworker might consider alternative sources of funding on the basis that there could be a breach of Article 8 but still refuse entry clearance on the basis that, having examined that evidence, there would not be a breach of Article 8 (see paragraph 45 of his skeleton argument).

Consideration of those Submissions

25. Taking the latter point first, I do not consider that any clarification is necessary. The flowchart to be followed is set out in [38] and is perfectly clear. If all of the requirements of the Immigration Rules are met save for the financial requirements, then consideration is given to GEN.3.1. If the criteria to consider alternative sources of income are met, then those relied upon are considered. If the decision-maker is satisfied that the financial requirements can be satisfied when taking into account those alternative sources (applying the relevant provisions of Appendix FM-SE) then entry clearance is granted. There is no requirement to go on to consider whether refusal ‘would’ result in a breach of Article 8.

26. If it is Mr Muman’s criticism that an appellant, who has failed to persuade a decision-maker that the financial requirements can be satisfied when taking into account the alternative sources relied up, would be required to show that a breach of Article 8 would follow refusal in order to succeed, then that again requires no clarification. That is precisely what the Court of Appeal intended to convey because that is exactly what was intended by the ‘Exceptional Circumstances’ regime. Merely because an individual asserts that they have adequate alternative sources of funding to meet the applicable threshold does not mean that decision-maker will necessarily agree after an objective assessment of the evidence applying the relevant evidential provisions of Appendix FM-SE. As the Court of Appeal observed in Khera at [35], ‘The state is entitled to assume that where the resources come from a third source their intrinsic reliability might not be as strong as when they come from the applicant and that there is an administrative burden which lies in verifying what, by their nature, might be less clear and certain sources of income and resource.’

27. Dealing with Mr Muman’s penultimate point above, I agree that the illegality identified in MM was the blanket instruction not to take alternative sources of funding into account, and that GEN.3.1 was implemented to address that issue. However, the Supreme Court did not find that the exclusion from consideration of other sources of income was per se a breach of Article 8 but rather that whether it would be a breach was circumstance specific. That can be seen from [100]:

‘100. As already explained, we do not see this as an issue going to the legality of the Rules as such. What is necessary is that the guidance to officers should make clear that, where the circumstances give rise to a positive article 8 duty in the sense explained in Jeunesse, a broader approach may be required in drawing the “fair balance” required by the Strasbourg court. They are entitled to take account of the Secretary of State’s policy objectives, but in judging whether they are met, they are not precluded from taking account of other reliable sources of earnings or finance. It is open to the Secretary of State to indicate criteria by which reliability of such sources may be judged, but not to exclude them altogether.’

28. Consequently, I do not agree that the threshold in GEN.3.1 was intended to be attainable in all or almost all cases.

29. Dealing finally with Mr Muman’s first argument above, GEN.3.1.(1)(b) requires the applicant to show (my emphasis), ‘…that there are exceptional circumstances which could render refusal of entry clearance or leave to remain a breach of Article 8 of the European Convention on Human Rights, because such refusal could result in unjustifiably harsh consequences…’. However, the application of that sub-paragraph is predicated on the applicant not meeting an applicable financial requirement from the sources specified in the relevant rules (GEN.3.1.(1)(a)). In other words, the applicant does not otherwise meet the Immigration Rules. As stated in R (Agyarko) v SSHD [2017] UKSC 11 at [60] (my emphasis):

‘60. It remains the position that the ultimate question is how a fair balance should be struck between the competing public and individual interests involved, applying a proportionality test. The Rules and Instructions in issue in the present case do not depart from that position. The Secretary of State has not imposed a test of exceptionality, in the sense which Lord Bingham had in mind: that is to say, a requirement that the case should exhibit some highly unusual feature, over and above the application of the test of proportionality. On the contrary, she has defined the word “exceptional”, as already explained, as meaning “circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate”. So understood, the provision in the Instructions that leave can be granted outside the Rules where exceptional circumstances apply involves the application of the test of proportionality to the circumstances of the individual case, and cannot be regarded as incompatible with article 8…’

30. In short, I do not accept that GEN.3.2 seeks to apply a trigger criterion inconsistent with the ultimate aim under Article 8 of striking a fair balance.

31. In any event, Mr Mumon recognises that the Supreme Court in MM made no judgment on whether GEN.3.1 was lawful (and therefore whether it adequately remedied the defects previously found).

32. It is now well established that, whilst an appellant may no longer appeal to the First-tier Tribunal on the ground that a decision was not in accordance with the Immigration Rules, a judge considering a human rights appeal must first view the appeal ‘through the lens’ of the applicable Rules. If the appellant satisfied those Rules then the public interest in maintaining effective immigration control did not require refusal of the application. Consequently, if Article 8 is engaged then satisfaction of the applicable Immigration Rules is positively determinative of the appeal (TZ (Pakistan) & PG (India) v SSHD [2018] EWCA Civ 1109 at [34]). In undertaking this step, it is the First-tier Tribunal’s role to apply the Immigration Rules as drafted, in accordance the with well-established rules for their interpretation.

33. It is not for this Tribunal at all (let alone within a statutory appeal) to decide whether GEN.3.1 is lawful. The role of this Tribunal is simply to decide whether the First-tier Tribunal’s decision involved the making of an error of law which, and in particular whether the First-tier Tribunal interpreted and applied the relevant Immigration Rules correctly.

Consideration of the Grounds of Appeal

Ground One

34. The judge’s application of GEN.3.1 is set out at [18] – [28] thus:

‘18. It is not disputed that the appellant does not satisfy the financial requirement set out in Appendix FM. The sponsor works part time due to her childcare responsibilities, and her earnings fall short of the £18600 pa required.

19. It has been submitted that the sponsor would be able to meet the financial requirements if the appellant were granted leave to enter the UK as she would then be able to take up full- time work. A letter from her employer has been submitted confirming that she could be offered full-time employment.

20. Where the requirements have not been met leave may still be granted where there are exceptional circumstances.

GEN3.1 sets out

3.1 (l))b) where it is evident from the information provided by the applicant that there are exceptional circumstances which could render refusal of entry clearance or leave to remain a breach of Article 8 of the European Convention on Human Rights, because such refusal could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child; then

the decision-maker must consider whether such financial requirement is met through taking into account the sources of income, financial support or funds set out in paragraph 21A(2) of Appendix FM-SE (subject to the considerations in sub-paragraphs (3) to (8) of that paragraph).

20. If 'unjustifiably harsh circumstances' are found then another possible source of income includes credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner.

21. In beginning the relationship both the appellant and the sponsor were aware that they would be living apart and that there was no guarantee that the appellant would be granted leave to enter the UK. The sponsor states in her statement that she had not given it any thought or sought advice until returning to the UK. It was therefore anticipated that this would be a long-distance relationship from the outset.

22. The sponsor now has 4 children, 3 of whom have met the appellant in Ghana and I accept are likely to have maintained some contact with him via phone and video, though no evidence of this has been submitted. They are British citizens who have their lives in the UK.

23. The consequence of the refusal decision is that the couple have a choice whether to continue the status quo until such time as the financial requirements can be met, or the sponsor and her children can move to Ghana.

24. I find that family life continuing as it has done since 2022 is not an unjustifiably harsh consequence of the decision. The sponsor said herself in evidence that losing the appeal would mean that their lives would not improve, not that that they would be worse or that the family would break down.

25. I am mindful of the best interests of the children who I heard have only visited Ghana, But if the family moved to Ghana they would be with their mother who is familiar with the country, and the appellant. They are young and would be able to adapt to new surroundings.

26. The appellant cited the unreported case of UI-2022-006552 which emphasized the wording of GEN3.1, that there 'could' be unjustifiably harsh consequences, in contrast to 'would' in GEN3.2. The tribunal found in that case that the prospect of the sponsor having to leave the UK to join the appellant, though an interference with her family and private life, would not result in unjustifiably harsh consequences for her but the case succeeded on the basis that her health could deteriorate ie at the lower threshold, it was a possibility, and she may he unable to travel which was found to be unreasonably harsh.

27. I am not obliged to follow this unreported case and whilst I have been assisted by the tribunal's discussion of the GEN 3 wording I am mindful that too much emphasis on the wording 'could', risks undermining the purpose of the requirements set out in the Rules, as any number of possible scenarios could be imagined. I find the submission that there could be exceptional circumstances as the family may have to leave the UK to be too generic. In this appeal there are no health problems and while the lack of funds are a factor in determining the frequency of any potential visits should the sponsor choose to remain in the UK, they are also the primary reason for the appellant failing to meet the Rules. It would be perverse to allow the appeal for the same reason that it has been refused.

28. Consideration of any potential alternative source of income is only necessary if exceptional circumstances have been found. I have not found unjustifiably harsh consequences and therefore do not find GEN 3 provisions to be met…’

35. It remains uncontentious that the appellant could not meet the financial requirements without consideration of alternative sources of income. Consequentially, when considering whether the appellant met the Immigration Rules nevertheless, the judge had to consider first if he did by application of GEN.3.1 and, if not, whether he did by application of GEN.3.2. In the first regard, the judge had to consider the five questions posed in step 2 of the checklist set out in Khera at [38].

36. It is clear that the judge applied too high a threshold for the final question: ‘could’ the relevant circumstances render refusal a breach of the appellant’s or family’s Article 8 rights? I reach that conclusion based in particular on the following passages of the judge’s judgment (my emphasis):

a. At [20], she says ‘If 'unjustifiably harsh circumstances' are found then another possible source of income includes…’
b. At [24], ‘I find that family life continuing as it has done since 2022 is not an unjustifiably harsh consequence of the decision.’
c. At [28], ‘I have not found unjustifiably harsh consequences and therefore do not find GEN 3 provisions to be met…’

37. Nevertheless, that question only falls to be considered if the (real) possibility of a breach of Article 8 arises from extant circumstances evident from the material put before the judge by the appellant. The extant circumstances found by the judge are:

a. At [5], that the sponsor is a British citizen living in the United Kingdom with her 4 children, none of whom are the appellant’s biological children.
b. At [11], that the couple first ‘met’ through a friend in 2020 and first met in person in 2022, that they married in Ghana on 31 August 2022 and have not seen each other since the sponsor’s return to the United Kingdom.
c. At [21], that in beginning the relationship both the appellant and the sponsor were aware that they would be living apart and that there was no guarantee that the appellant would be granted leave to enter the UK, and therefore that the couple anticipated theirs would be a long-distance relationship from the outset.
d. At [22], that the children are all British citizens, who have lived their lives in the United Kingdom, and 3 of whom (implicitly the 3 eldest) have met the appellant in Ghana and have maintained some contact with him by phone and video.

38. The only circumstances argued in the grounds of appeal as giving rise to a possibility of unjustifiably harsh consequences (and injury to their best interests) should refusal be maintained are the children’s British citizenship and each child’s existing relationship with the respective father. However, there was no finding that any of the children have a subsisting parental relationship with his or her father, nor is any challenge made to the absence of such a finding.

39. Therefore, the only extant circumstance as found by the judge on which the appellant relies is the fact that each of his sponsor’s children is a British citizen who has lived all his or her life in the United Kingdom.

40. In any event, whilst the judge does not appear to have considered whether there was a real possibility that moving such a child to Ghana could breach any of the family’s Article 8 rights neither was it found that refusal would necessitate such a move. The obvious alternative, and one which the judge manifestly had in mind (see [23]), was a continuation of the status quo.

41. There was no finding that the children have any parental relationship with the appellant, nor is any express challenge made to the absence of such a finding. Similarly, there was no finding that the children’s continued separation from the appellant would be contrary to their best interests nor, again, is there a challenge to the judge’s failure to make any such finding. At [24], the judge notes the sponsor’s evidence that ‘losing the appeal would mean that their lives would not improve, not that that they would be worse or that the family would break down.’

42. There is simply no circumstance found by the judge to be evident, from which there was a real possibility that refusal could result in a breach of any of the family’s Article 8 rights.

43. In short, whilst I find that the judge did misunderstand the test to be applied under GEN.3.1, it was inevitable on the findings she made that, had she applied the test as explained in Khera, she would have concluded that alternative sources of income did not need to be considered under that paragraph.

44. The appellant’s skeleton argument at paragraph 58 criticises the judge’s approach to GEN.3.2. However, that did not constitute a ground of appeal either in the grounds as originally drafted or in their reformulation at paragraph 9 of the appellant’s skeleton argument.

45. In any event, only the following matters are identified as having been left out of account in the judge’s assessment of GEN.3.2: the ‘undisputed fact’ that two of the sponsor’s children have contact with their biological father; the sponsor will not be able to meet the minimum income requirement until the appellant is admitted; the sponsor is a ‘struggling’ single mother of four children who is unlikely to escape the benefits trap unless able to find child-care for at least 12 months or be joined by the appellant; moving overseas with the children was unlikely and contrary to their best interests. In considering at [24] that family life continuing as is would not be unjustifiably harsh, the first and last of the above considerations fall away (the children would in that scenario remain in the United Kingdom and be able to continue their relationship with their biological father as before). Regarding the sponsor’s ability to meet the minimum income requirement and ability to find child-care, the judge records at [29] that ‘no evidence has been submitted to explain why alternative childcare has not already been sought to enable the sponsor to take on more hours.’ Consequently, it is manifestly the case that the judge took the sponsor’s claimed situation into account.

46. Ground One discloses an error of law but, for the reasons given above, the error was immaterial and does not require that the decision be set aside.

Ground 2

47. Whilst not strictly necessary, given my conclusions above on ground 1, I reach the following conclusions on ground 2.

48. The judge’s conclusions on the alternative source of income relied upon by the appellant are found at [28]-[29]

‘28. …But, even if I am wrong I find the possibility of the sponsor's full-time employment to be speculative.

29. The evidence submitted is not an offer of full-time employment but is dependent on a change in the sponsor's circumstances, namely the provision of alternative childcare. The employer's letter gives no detail as to earnings or start date. Further, no evidence has been submitted to explain why alternative childcare has not already been sought to enable the sponsor to take on more hours. Although it is submitted that the appellant's presence in the UK would enable her to do so, this conflicts with the appellant's reference to taking up employment himself on arrival.’

49. The appellant complains that these were unfair findings, not having been put in issue by the respondent nor challenged in cross-examination. However, contrary to what is said in the grounds at paragraph 18, the respondent expressly challenged the reliability of the offer of full-time employment in her review. At paragraph 20, the respondent asserted that the assertion that the sponsor could earn more money working full-time was speculative, referring to the relevant provisions of Appendix FM-SE. Moreover, given that the issue was principally documentary, it was not even arguably unfair for the judge to resolve this issue against the appellant without the sponsor having been cross-examined on the point.

50. It is said in the alternative that the judge failed to take into account relevant evidence from which she could have been satisfied of the salary the sponsor would have received on a full-time contract.

51. That evidence comprised evidence of her present employment, confirmation that her employer had full-time positions and that they would be more than happy to facilitate a move to full-time employment if the appellant wished to make the change, and adverts for full-time positions in the same role with information about starting salary. The fact that the judge in [29] focusses on the employer’s email does not mean that she overlooked the remaining documentation. The fact is that the judge was assessing the appellant’s ability to meet the Immigration Rules and so was necessarily viewing the evidence through the lens of Appendix FM-SE (or certainly should have been doing so and had been invited to do so by the respondent per paragraph 19 of her review). The email fell significantly short of the requirements of being a specific job offer as specified in paragraph 21A(8)(b) of Appendix FM-SE, for the reasons given by the judge.

52. The remaining evidence could have supported a conclusion that full-time positions were probably available and that they would probably have paid above the financial threshold. Moreover, it was open to the judge to take them into account in her assessment, given that the evidence listed paragraph 21A(8) of FM-SE is expressly stated to be non-exhaustive. However, it did not alter the fact that the sponsor’s ability to fulfil the role was dependent on her having alternative childcare, and that the evidence had not addressed why she had not already sought that childcare. These were matters manifestly relevant to if and how quickly the sponsor could and would take up additional work if entry clearance was granted, which was in turn relevant to the reliability of the ‘offer’ of such work. Furthermore, it was open to the judge to consider that the additional evidence did not remedy the deficiencies of the ‘offer’ email relied upon when assessed under paragraph 21A(8)(b) of Appendix FM-SE (as argued in the review).

53. I agree that a less emotive adjective than ‘speculative’ could have been chosen, but the fact remains that the judge was entitled to find and clearly did find (in the alternative) that the evidence of prospective employment relied upon by the appellant fell so far short of the provisions of Appendix FM-SE as to be unable reliably to satisfy the financial requirements even if the possibility of an Article 8 breach had required its consideration.

54. Ground 2 does not disclose an error of law.

55. I should add that, even if I had been persuaded that the error identified in ground 1 was material to the judge’s decision on whether or not to consider alternative sources of funding, it is rendered immaterial to the judge's overall decision by my conclusions on ground 2.

Ground 3

56. The grounds as reformulated in the skeleton argument raise the following criticisms of the judge’s, admittedly brief, assessment of proportionality. The judge treated the appellant’s failure to satisfy the Immigration Rules as a ‘weighty matter’. The judge failed to take into account the sponsor’s disposable income and so her ‘real world’ ability to support the appellant, and failed to appreciate that entry clearance would reduce the family’s reliance on public funds. The judge required the existence of unjustifiably harsh consequences rather than seeking to strike a fair balance, importing the errors in her assessment under GEN.3.1 and GEN.3.2. The judge failed to consider the Article 8 rights of all affected individuals (Including in particular the best interests of the sponsor’s children).

57. It is no error to treat an individual’s inability to meet the requirements of the Immigrations Rules as a weighty matter in the proportionality assessment (see GM (Sri Lanka) v SSHD [2019] EWCA Civ 1630 at [28]). The judge did not treat the appellant’s failure to meet the Immigration Rules as determinative, as implied in paragraph 68 of the skeleton argument; at [31] and [32] she expressly gave consideration to the factors identified earlier in her judgment, which included matters advanced on the appellant’s behalf.

58. The judge refers at [7] to the evidence presented to her, which included the documentary evidence, witness statements and oral evidence. There is no proper basis to conclude that the sponsor’s actual income, which is detailed at paragraph 9 of her witness statement, was overlooked. In any event, it was accepted that she did not meet the financial requirements. The suggestion that her total income (including benefits) would enable her to support the appellant and so make him financially independent of the state was a matter at best neutral in the balance (per s117B(3) and Rhuppiah v SSHD [2018] UKSC 58 at [57]).

59. As for the submission that the judge’s decision perversely undermined the public policy objective behind the minimum income requirement, no challenge to the proportionality of refusal on such grounds is made in the appeal skeleton argument nor is there mention of such a submission in the judgment. In any event, there is no merit in the submission that the public interest required the appellant’s admission. In Thakrar (Cart JR; Art 8: value to community) [2018] UKUT 00336 (IAC), the Upper Tribunal found that the fact that a person makes a substantial contribution to the United Kingdom economy cannot, without more, constitute a factor that diminishes the importance to be given to immigration controls, when determining the Article 8 position of that person or a member of his or her family. Consequently, even if this submission had been made but not considered by the judge, no material error arises.

60. No error arose in the judge’s assessment under GEN.3.1 and GEN.3.2, nor was it an error for the judge to require the existence of unjustifiable harshness to allow the appeal under Article 8 outside the Rules, for the reasons given above.

61. There is no merit whatsoever in the submission that the judge limited her consideration under Article 8 to the effect of the decision on the appellant alone. In her relatively concise consideration of proportionality at [30] to [33], the judge expressly imported her earlier consideration of matters under GEN.3.1 and GEN.3.2, which included express consideration of the effect of refusal on the wider family and the children’s best interests.

62. Ground 3 does not disclose an error of law.

The Substantive Merits of the Original Appeal

63. I should add that, had I found a material error of law in the judge’s application of GEN.3.1 and consequently had to remake the decision (as it was agreed I should do without the need for further hearing), I would nevertheless have found that there were no extant circumstances evident from the material before me which gave rise to a real risk of a breach of Article 8.

64. The circumstances in short are that this couple met in 2020 and married in August 2022 in Ghana having met to face only earlier that year. They gave no consideration to whether the appellant could join his sponsor in the United Kingdom until after she returned to the United Kingdom on 11 September 2022 and so had no reasonable basis to believe when they married that they could live together in the United Kingdom. The sponsor has 4 children none of who are the appellant’s biological children. The two eldest (aged nearly 14 and 12) do not have any relationship with their father, but the two youngest (aged 9 and 2) do have a relationship with their own. Indeed, he helps look after the children so that the sponsor can work, as does a neighbour.. The sponsor has worked as an autism practitioner for 8 years and could, it would appear, increase her hours to meet the financial requirements of the rules were she to secure further childcare. The couple have lived together for only around 2 weeks. They presently maintain their relationship via modern means of communication. The sponsor claims not to be able to visit Ghana. I am not told of any applications by the appellant to visit the sponsor. There is no evidence of a relationship between the appellant and the sponsor’s children, and no evidence that the status quo is detrimental to their best interests. There is no evidence that the sponsor would even be reasonably likely to leave the United Kingdom should this appeal fail, rather to the contrary. Neither is there any evidence that the appellant’s relationship with the sponsor would be reasonably likely to founder. On the contrary, the fact that their relationship has survived 3 ½ years apart strongly suggests that it would continue to survive even if there were a real possibility of the present situation continuing for a significant period of time.

65. The appellant and sponsor are effectively requiring that the respondent facilitate their choice of place to enjoy family life together notwithstanding an inability to meet the primarily applicable Immigration Rules. There is no real prospect of refusal amounting to a failure to strike a fair balance.

66. For the same reasons, I would have found that refusal would not in fact result in unjustifiably harsh consequences such that it failed to strike a fair balance between this family’s rights and the public interest. Consequently, I would, if required to remake the decision, have dismissed the appeal.

Notice of Decision

1. The decision of the First-tier Tribunal did not involve the making of a material error of law, and so stands undisturbed.


Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber


11 March 2026