Secretary of State for the Home Department v Khera: Court clarifies Article 8 test

The Court of Appeal has overturned an Upper Tribunal decision that adopted an overly permissive interpretation of when alternative financial sources may be considered in immigration applications, clarifying that a "real risk" or "realistic possibility" of Article 8 breach is required, not mere speculation about future scenarios.

Sandeep Mohan Khera, an Indian national, applied for entry clearance to join his British wife and son in the UK. Whilst meeting other eligibility requirements, he could not satisfy the minimum income threshold under Appendix FM of the Immigration Rules. His wife was unable to work due to ill health, so he sought to rely on their son's income of £26,593.

The Entry Clearance Officer refused the application, finding no exceptional circumstances that could render refusal a breach of Article 8 ECHR. After initial proceedings, the Upper Tribunal allowed the appeal, holding that "mere possibility" of unjustifiably harsh consequences sufficed under paragraph GEN 3.1(1)(b) to trigger consideration of alternative financial sources.

The legal framework

Following the Supreme Court's guidance in MM (Lebanon) v SSHD, paragraphs GEN 3.1 and 3.2 were introduced to Appendix FM. These provisions balance the state's legitimate interest in financial sustainability requirements against potential Article 8 violations.

GEN 3.1 operates as a procedural gateway: where financial requirements are unmet but "exceptional circumstances...could render refusal" an Article 8 breach, decision-makers must consider alternative income sources from third parties or prospective earnings.

The Court's analysis

Lord Justice Green, delivering the leading judgement, established that GEN 3.1 and 3.2 must be read together as complementary provisions striking a fair balance between state control and individual rights.

The Court rejected the Upper Tribunal's interpretation that "could" meant "mere possibility". Instead, "could" requires a "real risk" or "realistic possibility" of Article 8 breach. This lower threshold than "would" (used in GEN 3.2) reflects that the assessment occurs before alternative financial evidence has been fully examined.

Critically, the word "are" in GEN 3.1(1)(b) indicates circumstances must be extant and current, not hypothetical. The provision requires circumstances that actually exist and give rise to a real risk, not speculative future scenarios that might theoretically arise.

The reference to "exceptional circumstances" does not create a sub-category of Article 8 cases but simply acknowledges that circumstances warranting this route will be legally rare.

Application to the facts

The Upper Tribunal had found Mrs Khera's Article 8 rights were engaged but concluded refusal was unlikely to cause unjustifiably harsh consequences. Her ill health did not prevent her returning to India to live with her husband or accessing medical treatment there.

The Court held that speculating about potential future deterioration in Mrs Khera's health could not satisfy the test. No extant circumstances demonstrated a real risk or realistic possibility of unjustifiably harsh consequences.

Without such circumstances, there was no requirement for the Entry Clearance Officer to consider alternative financial sources under GEN 3.1. The refusal was lawful.

The appeal was allowed, with Lords Justice Phillips and Moylan concurring. This judgement provides important clarification on the threshold for accessing alternative financial provisions, preventing the erosion of financial requirements through speculative scenarios whilst maintaining proper Article 8 safeguards.

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