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06 November 2020

Consider “special circumstances” as part of a residence appeal

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We recently acted for a UK client who did not meet the Immigration policy criteria.  A residence appeal was filed with the Immigration and Protection Tribunal which focused on our client’s personal and/or special circumstances.  This is a separate option which is available to any applicant when filing a residence appeal.

There is no definition for “special circumstances” under the Immigration Act.  The Court and Tribunal has provided some helpful guidance as to what should be included and the area of focus. 

In BA (Permanent Resident) the Tribunal made the following observation with respect to an assessment of “special circumstances”, stating that:

[44] Whether an appellant has special circumstances will depend on the particular facts of each case. The Tribunal balances all relevant factors in each case to determine whether the appellant's circumstances, when considered cumulatively, are special.

In Rajan v Minister of Immigration, Glazebrook J indicated at paragraph [24] that special circumstances are “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”.

In NP (Parent) the Tribunal made the following observation with respect to the distinction between “humanitarian” and “special circumstances” and stated that:

[68] It should be noted that in this appeal the Tribunal is not determining whether or not the appellant should be deported from New Zealand. This is not a humanitarian appeal. The Tribunal’s jurisdiction in this appeal provides for consideration as to whether the appellant’s particular circumstances justify a recommendation for consideration by the Minister of Immigration of an exception to residence instructions.

Accordingly, an assessment of “special circumstances” is broader than humanitarian factors and can include facts which would otherwise be excluded or not considered under a humanitarian appeal. 

Our client’s appeal focused on (among other things) convention rights relating to the children, family support in New Zealand, and financial circumstances in the UK. 

The Tribunal ultimately determined that a combination of factors amounted to “special circumstances” in our client’s case. This case demonstrates that it is always worth considering the bigger picture when submitting an immigration appeal.

If you have concerns about returning to your home country, we strongly recommend that you contact one of our immigration lawyers for advice.


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