The Secretary of State for the Home Department v Sandeep Mohan Khera

Under paragraph GEN 3.1(1)(b) of Appendix FM, could sets a lower threshold than would, but requires a real risk or realistic possibility that refusal would breach Article 8 by causing unjustifiably harsh consequences. The relevant circumstances must be current and supported by the applicant’s information. A merely theoretical possibility based on hypothetical future events is insufficient. GEN 3.1 is a procedural gateway to consideration of specified alternative financial resources. If that gateway is not met, the decision-maker need not consider third-party income. The refusal may nevertheless require separate consideration under GEN 3.2, which applies the fuller question whether refusal would breach Article 8.

The respondent, an Indian national, applied for entry clearance to join his British wife and son in the United Kingdom. He could not satisfy the applicable financial requirement and sought to rely on his son’s income. The Entry Clearance Officer refused the application. The First-tier Tribunal allowed the respondent’s appeal, finding that refusal breached Article 8. The Upper Tribunal set aside that decision for error of law, remade the decision, and allowed the appeal on the basis that a mere possibility of unjustifiably harsh consequences was sufficient under GEN 3.1(1)(b). The Secretary of State appealed, raising the proper meaning and application of could.

Lord Justice Green gave the leading judgment. Lord Justices Phillips and Moylan agreed.

1. Appeal allowed. The financial eligibility requirements in the Immigration Rules pursue legitimate public interests, including reducing the risk of applicants becoming a burden on the state. The Rules also recognise that ignoring reliable alternative financial resources may risk an Article 8 breach: see MM (Lebanon) v SSHD [2017] UKSC 10 and Rhuppiah v SSHD [2018] UKSC 58.
2. GEN 3.1 and GEN 3.2 must be read together. GEN 3.1 is a procedural gateway. Where the financial requirement is unmet, it asks whether the applicant’s information shows current exceptional circumstances creating a real risk or realistic possibility that refusal could breach Article 8. If the gateway is satisfied, specified alternative sources under paragraph 21A(2) of Appendix FM-SE must be considered. If they satisfy the financial requirement, clearance must be granted. If they do not, GEN 3.2 may still require the fuller assessment whether refusal would breach Article 8.
3. The word are requires the relevant circumstances to be extant and current. It excludes hypothetical future scenarios amounting only to a theoretical possibility. The word could conveys a lower threshold than would, but does not mean a mere possibility. Unjustifiably harsh consequences restate the circumstances in which Article 8 rights would be breached.
4. The court observed that exceptional circumstances in GEN 3.1 and GEN 3.2 indicate that cases reaching the Article 8 threshold will be rare. The phrase does not add a separate substantive threshold to, or detract from, Article 8. This interpretive observation was not determinative on the facts.
5. The Upper Tribunal had found that refusal was not likely to cause unjustifiably harsh consequences and relied only on speculative future possibilities. The respondent therefore failed to show a realistic possibility of an Article 8 violation. The Entry Clearance Officer was not required to consider alternative sources of finance, and the refusal was lawful.

• Court of Appeal (Civil Division): In [2025] EWCA Civ 1571, allowed the Secretary of State’s appeal and held that the refusal of entry clearance was lawful.
• Upper Tribunal (Immigration and Asylum Chamber): On 7 July 2024, remaking the decision after an earlier error-of-law ruling, allowed the respondent’s appeal and held that a mere possibility of unjustifiably harsh consequences satisfied GEN 3.1(1)(b).
• First-tier Tribunal: Allowed the respondent’s appeal by decision dated 30 November 2022 and promulgated on 6 December 2022, finding that refusal breached Article 8. The Upper Tribunal held on 27 July 2023 that the First-tier Tribunal had erred in law.
• Entry Clearance Officer: Refused the entry-clearance application on 6 April 2022.