Real Risk, Not Mere Possibility: Interpreting “Could” in GEN 3.1 of Appendix FM

Commentary on Secretary of State for the Home Department v Khera [2025] EWCA Civ 1571

1. Introduction

This Court of Appeal decision in Secretary of State for the Home Department v Khera concerns a core question in family migration under Appendix FM: what threshold must be met before an Entry Clearance Officer (“ECO”) is obliged, under paragraph GEN 3.1(1)(b), to consider alternative sources of financial support (such as a child’s income) to meet the minimum income requirement?

The crucial interpretive issue was the meaning of the word “could” in the phrase:

“…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…”

The Upper Tribunal (“UT”) held that “could” signified a “mere possibility” of such consequences, and that this was sufficient to trigger the GEN 3.1 “gateway” to consider third-party financial resources. The Court of Appeal decisively rejected that view. It held that “could” imports a requirement of a “real risk” or “realistic possibility”, not a bare or speculative possibility.

The judgment also clarifies:

the relationship between GEN 3.1 and GEN 3.2 within Appendix FM;
the proper understanding of “exceptional circumstances” and “unjustifiably harsh consequences”;
the requirement that circumstances must be extant (currently existing), not merely hypothetical; and
how the rules embed the Article 8 “fair balance” requirement identified in MM (Lebanon).

The case therefore sets a clear precedent on the standard of risk required under GEN 3.1(1)(b) and provides structured guidance on how decision-makers and tribunals should approach Article 8-related financial flexibility in family migration cases.

2. Background and Procedural History

2.1 The parties and the factual context

The Respondent, Mr Sandeep Mohan Khera, is an Indian national, married since 1999 to his wife (“Mrs Khera”), a British citizen. Their son, born in 2000 (“Mr Khera”), is also British. The family previously lived together in India. In 2019, Mrs Khera and their son moved to the UK; the Respondent remained in India.

On 21 October 2021, the Respondent applied for entry clearance under Appendix FM as a partner, seeking to re-join his wife in the UK. It was common ground that:

He met all the relevant eligibility requirements other than the financial requirement.
Neither he nor his wife met the minimum income threshold from the sources listed in paragraph E‑ECP.3.2.
He sought to rely on his adult son’s income in the UK (then c. £26,593 pa) as an alternative source of financial support.

He also relied on his wife’s ill-health as an aspect of the circumstances bearing on Article 8.

2.2 The ECO decision

On 6 April 2022, the ECO refused the application, on two core bases:

The Respondent did not satisfy the financial eligibility requirements in E‑ECP.3.1–3.4 from the permitted sources in E‑ECP.3.2.
The ECO found there were no “exceptional circumstances” which could or would render refusal a breach of Article 8 by causing unjustifiably harsh consequences for the Respondent or his family. Accordingly, GEN 3.1(1) was not engaged, and alternative sources of income could not be considered.

2.3 First-tier Tribunal and Upper Tribunal

The Respondent appealed to the First-tier Tribunal (“FtT”), which allowed the appeal on 30 November 2022. The FtT considered that a refusal would breach his Article 8 rights.

The Secretary of State appealed to the UT. On 27 July 2023, the UT found that the FtT had erred in law (particularly in its balancing exercise under Article 8) and set aside the decision. It then remade the decision itself after a rehearing on 19 April 2024, focusing on the interpretation and application of GEN 3.1(1).

2.4 The UT’s interpretation of GEN 3.1(1)(b)

The UT emphasised the contrast between:

“could render refusal … a breach of Article 8…” in GEN 3.1(1)(b); and
“would render refusal … a breach of Article 8…” in GEN 3.2(2).

It reasoned that “could” must have a “distinct meaning” and allow for some uncertainty, and it adopted the definition:

“a possibility something will occur”

It then held that:

Although refusal of entry clearance would not (and was not likely to) result in unjustifiably harsh consequences for the Respondent or his wife on the findings made; nonetheless
There was a “possibility” that it could do so in the future (e.g. if his wife’s health were to deteriorate to the point she could no longer travel to India).

On that basis the UT concluded that a “mere possibility is enough” to satisfy GEN 3.1(1)(b). It therefore held that:

GEN 3.1(1) was engaged;
The ECO ought to have considered alternative income sources, including the son’s earnings; and
Given its factual findings that the son could and would support his parents, it was disproportionate to refuse entry clearance, and the appeal should be allowed.

2.5 The appeal to the Court of Appeal

The Secretary of State appealed, advancing two main grounds:

The UT misinterpreted and/or misapplied GEN 3.1(1)(b), by treating “could” as synonymous with a “mere possibility”.
Given its own findings that refusal would not result in unjustifiably harsh consequences, the UT’s further conclusion that refusal could result in such consequences was perverse or irrational on any proper reading of GEN 3.1.

Permission to appeal was granted by Andrews LJ on 6 December 2024. The Court of Appeal (Lady Justice [primary judge delivering the lead judgment], with Phillips LJ and Moylan LJ agreeing) allowed the appeal.

3. Summary of the Court of Appeal’s Judgment

The Court of Appeal held:

Meaning of “could” in GEN 3.1(1)(b): “Could” does not mean “a mere or theoretical possibility”. Instead, it denotes a “real risk” or “realistic possibility” that refusal of entry clearance would breach Article 8 because it would result in unjustifiably harsh consequences.
Extant, not hypothetical, circumstances: The wording “there are exceptional circumstances which could…” requires that the relevant circumstances are current and actual at the time of decision, not purely speculative future scenarios.
“Exceptional circumstances”: Consistent with MM (Lebanon) and related authority, “exceptional circumstances”:
- does not create a new, higher threshold than Article 8 itself;
- is simply a way of indicating that cases where Article 8 requires departure from the rules will be relatively rare;
- adds nothing substantive to the content of the Article 8 test.
The role of GEN 3.1 vs GEN 3.2: The Court explained the two-stage scheme:
- GEN 3.1 operates as a gateway that, where there is a real risk that refusal could breach Article 8, permits the decision-maker to consider alternative sources of income under Appendix FM‑SE 21A(2).
- GEN 3.2 is the broader Article 8 safety net, applied when the rules (including GEN 3.1) are not satisfied, requiring the decision-maker to consider whether refusal would breach Article 8, and to grant leave where that is so.
Consistency with MM (Lebanon): GEN 3.1 and 3.2 were introduced to implement the Supreme Court’s guidance in MM (Lebanon), ensuring that reliable alternative income (e.g. third-party support, prospective earnings) can be considered where necessary to avoid an Article 8 breach, while maintaining a structured and administratively workable system.
Application to Mr Khera’s case: On the UT’s own findings:
- Refusal of entry clearance would not result in unjustifiably harsh consequences;
- His wife’s health, while problematic, did not prevent her travelling to and living in India or from obtaining appropriate treatment there; and
- Any “harsh” consequences were speculative, dependent on hypothetical future deterioration.
There were therefore no extant circumstances demonstrating a real risk of unjustifiably harsh consequences. GEN 3.1(1) was not satisfied, and the ECO was not required to consider alternative income. The refusal was lawful.

The appeal was allowed; the UT’s decision was set aside, and the ECO’s original refusal decision was effectively reinstated.

4. Detailed Legal Analysis

4.1 The statutory and rules framework

The decision sits at the intersection of:

Appendix FM of the Immigration Rules (family life route);
Article 8 of the European Convention on Human Rights (ECHR); and
Part 5A of the Nationality, Immigration and Asylum Act 2002 (public interest considerations).

GEN 1.1 of Appendix FM expressly states that the rules reflect how, under Article 8, the balance will be struck between respect for family life and the legitimate aims of:

national security, public safety, and economic well-being;
prevention of disorder or crime;
protection of health or morals; and
protection of the rights and freedoms of others.

For partners, paragraph EC‑P.1.1 sets the basic entry clearance requirements, including that the applicant must meet all the eligibility requirements in Section E‑ECP. Among these, E‑ECP.3.1–3.3 impose the minimum income requirement (“MIR”), which, in its current form, demands:

a specified income of at least £29,000; or
a specified combination of savings and income; or
certain benefits-based exceptions (E‑ECP.3.3).

Crucially, paragraph E‑ECP.3.2 strictly limits the income sources that can count, generally to the income and savings of the applicant and their partner, not of other family members such as adult children.

GEN 3.1 and GEN 3.2 were later inserted as exceptions/safeguards, following MM (Lebanon), to allow:

use of alternative sources of income (third-party support, prospective earnings, other credible funds) in narrow Article 8-sensitive circumstances; and
a “last-resort” Article 8 assessment where the rules are not otherwise met.

4.2 The key interpretive issue: “could render refusal… a breach of Article 8”

GEN 3.1(1)(b) requires that:

“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… because such refusal could result in unjustifiably harsh consequences…”

The Court’s central interpretive task was to determine what “could” means in this context, bearing in mind:

the purposive background in MM (Lebanon);
the linguistic context within Appendix FM; and
broader principles of construction (including avoiding absurdity).

The Secretary of State argued that “could” must be understood as importing a requirement of a real risk of a breach of Article 8. The UT’s conclusion that a bare “mere possibility” sufficed was said to be inconsistent with the structure and purpose of the rules and to lead to absurd consequences.

The Respondent, significantly, accepted that the UT’s “mere possibility” approach had gone too far, but tried to salvage the decision by arguing that the UT’s factual findings in practice met a standard of “realistic possibility”.

The Court of Appeal held:

“Could” implies something less than “would” but more than a minimal or fanciful possibility.
“Could” is properly interpreted to mean a real risk or realistic possibility of an Article 8 breach, not a speculative or theoretical chance.
No party contended that “real possibility” meant “mere possibility”; therefore the UT’s “mere possibility” standard was incorrect.

4.3 The interaction between GEN 3.1 and GEN 3.2: a structured two-stage scheme

The Court provides a particularly helpful synthesis of how GEN 3.1 and GEN 3.2 work together. It explains the scheme as follows:

4.3.1 GEN 3.1 – the financial “gateway”

GEN 3.1 applies where:

The MIR in E‑ECP.3.1 applies and is not met from the listed sources; and
It is evident from the applicant’s information that there are extant exceptional circumstances which could (i.e. present a real risk that they would) render refusal a breach of Article 8, because they could result in unjustifiably harsh consequences.

When these conditions are met, the ECO must consider whether the MIR is met by taking account of the alternative sources in para 21A(2) of Appendix FM‑SE, namely:

credible third-party guarantees of sustainable support,
prospective earnings, and
other credible income or funds.

If, following that exercise, the MIR is satisfied, the applicant must be granted entry clearance (assuming other rules are met).

Two important features emerge:

GEN 3.1 is procedural and conditional – it opens the door to consider third-party or alternative income sources where there is a real risk that not doing so would result in an Article 8 breach.
The threshold of “could” is deliberately lower than “would”: applicants may, in some circumstances, obtain leave after GEN 3.1 consideration, even though refusal might not ultimately have amounted to an Article 8 violation. That is not, in itself, problematic; it simply reflects a structured and cautious approach to avoid breaches.

4.3.2 GEN 3.2 – the substantive Article 8 “safety net”

GEN 3.2 is triggered where an application does not otherwise meet the requirements of Appendix FM (or Part 9). The ECO must then consider whether:

on the basis of the information provided by the applicant,
there are exceptional circumstances which would render refusal a breach of Article 8,
because refusal would result in unjustifiably harsh consequences for the applicant or affected family members.

Where these circumstances exist, the applicant must be granted leave under the relevant disposal paragraphs.

In other words:

GEN 3.2 requires a full Article 8 assessment: Would refusal be disproportionate because of unjustifiably harsh consequences?
GEN 3.1, by contrast, is preliminary and procedural: Is there a real risk that, if we do not consider additional financial sources, refusal could breach Article 8?

4.4 The Court’s reading of specific key wording

The Court carefully parses several key terms in GEN 3.1 and 3.2. These interpretive points are themselves precedential and practically important.

4.4.1 “are exceptional circumstances” – extant, not hypothetical

Both GEN 3.1 and GEN 3.2 require that there “are” exceptional circumstances. The Court emphasises that this implies:

The circumstances must be extant – that is, actually present at the time of the ECO’s assessment.
Purely hypothetical or speculative future scenarios (e.g. a possible future health deterioration that is not currently impending) do not satisfy this requirement.

The UT’s approach – positing that perhaps, at some unknown future time, the wife’s health might decline such that she could not travel – was a paradigm example of impermissible speculation. It did not reflect circumstances which “are” present, but only those which might one day exist.

4.4.2 “it is evident from the information provided by the applicant”

GEN 3.1 requires that it be “evident from the information provided by the applicant” that the relevant exceptional circumstances exist. GEN 3.2 speaks of considering whether there are exceptional circumstances “on the basis of the information provided”.

The Court notes some uncertainty as to whether “evident from” carries a stricter meaning than “consider on the basis of”, but it issues a caution:

It would be disproportionate and inconsistent with Article 8 if minor evidential gaps automatically led to refusal, where the missing information was readily obtainable and the risk to Article 8 rights was otherwise clear.
The ECO must approach these provisions in a way that gives real effect to the Article 8-protective purpose of GEN 3.1 and GEN 3.2, rather than treating “evident” as a rigid procedural trap.

On the facts, little turned on this nuance, but the interpretive warning is important for future cases.

4.4.3 “exceptional circumstances”

The Court situates “exceptional circumstances” within its established Article 8 context:

The phrase has long been used in Home Office guidance and was analysed by the Supreme Court in MM (Lebanon).
As explained there, “exceptional circumstances” is a shorthand for situations in which Article 8 would require leave to be granted; it does not delimit a smaller or higher-threshold subset of Article 8 cases.
Thus, “exceptional” is used to signify that instances where Article 8 compels departure from the rules will be rare in practice, but the concept does not itself add a new condition beyond Article 8.

In this particular case, the Court found that nothing ultimately turned on whether the Respondent’s circumstances were “exceptional”, because on the UT’s factual findings no realistic Article 8 breach arose in any event.

4.4.4 “could” – real risk / realistic possibility

This is the central interpretive holding of the case.

The Court:

accepts that “could” in GEN 3.1(1)(b) indicates a lower threshold than “would” in GEN 3.2(2);
identifies the function of “could” as describing a risk-based trigger for allowing consideration of third-party financial evidence; and
adopts, in agreement with both parties, the understanding that “could” means “real risk” or “realistic possibility”, and expressly disavows any suggestion that it would include a “mere, theoretical possibility”.

A “mere possibility”, as used by the UT, would effectively require ECOs to consider alternative sources of income in almost every case, since one can usually imagine some future scenario in which refusal of entry clearance might impact family life severely. That would:

undermine the structure and coherence of the rules;
be inconsistent with the legitimate policy aim of administrative simplicity and predictability endorsed in MM (Lebanon); and
run contrary to principle against absurdity in statutory interpretation.

4.4.5 “unjustifiably harsh consequences”

The phrase “unjustifiably harsh consequences” is treated by the Court as essentially a re-formulation of the Article 8 proportionality exercise. That is:

If refusal would cause consequences for the applicant or affected family members that are so harsh that they cannot be justified by the public interests (economic well-being, immigration control, etc.), then refusal would breach Article 8.
This is entirely consistent with the Supreme Court’s approach in Agyarko and other cases concerning when Article 8 requires leave to be granted in family migration contexts.

4.5 Application to the facts of Khera

Returning to the specific case, the Court emphasised the UT’s own factual findings:

The Respondent and his wife were in a genuine and subsisting relationship and wished to continue it in the UK.
The wife had a number of physical health problems, but:
- she could travel to India despite them; and
- those conditions could be treated in India.
The UT expressly found that refusal of entry clearance would not result in unjustifiably harsh consequences for the Respondent or his wife, and that such consequences were not likely.

Against that background, the UT’s further conclusion that there was nonetheless a “possibility” that refusal could cause unjustifiably harsh consequences – based on hypothetical future deterioration in the wife’s health – was inconsistent with the requirement for extant circumstances and fell short of establishing any real risk.

The Court’s core conclusions on the facts were therefore:

There were no present circumstances that would give rise to a realistic possibility of unjustifiably harsh consequences – at most, there were speculative future scenarios.
Accordingly, the Respondent failed to demonstrate any real risk of an Article 8 breach, whether under a “could” or a “would” standard.
GEN 3.1(1)(b) was not satisfied, and the ECO was under no obligation to consider alternative financial sources such as the son’s income.
The refusal of entry clearance was, therefore, lawful and proportionate.

5. Precedents and Authorities Considered

5.1 MM (Lebanon) v SSHD [2017] UKSC 10

MM (Lebanon) is the key background authority. It concerned the compatibility of the MIR with Article 8. The Supreme Court held that:

The MIR is in principle lawful and pursues legitimate aims, including the economic well-being of the UK and ensuring that families are self-sufficient.
The Secretary of State is entitled to prioritise clarity and administrative workability in framing the rules, even at the cost of some rigidity.
However, the application of those rules must be sufficiently flexible to avoid breach of Article 8 in individual cases.

In particular, paragraph [100] of the Supreme Court judgment (quoted in Khera) stressed that where the circumstances give rise to a positive Article 8 duty:

“…a broader approach may be required in drawing the "fair balance" required by the Strasbourg court. … [Decision-makers] are not precluded from taking account of other reliable sources of earnings or finance.”

GEN 3.1 and GEN 3.2 are the direct regulatory response to this guidance. The Court of Appeal in Khera therefore interprets those provisions in light of MM (Lebanon)’s purpose:

allowing reliable third-party/alternative income to be taken into account, but only where there is a real risk that refusing to do so would breach Article 8; and
maintaining the general structure and rigor of the MIR as the norm.

5.2 Mahad v ECO [2009] UKSC 16 and R (Wang) v SSHD [2023] UKSC 21

These cases were invoked to frame the general approach to interpreting the Immigration Rules:

Mahad established that the Rules should be interpreted according to their natural and ordinary meaning, considered in their proper context and purpose.
Wang reaffirmed that while some “relaxation of strictness” in interpretation might be appropriate, especially where human rights are implicated, the Rules remain a coherent scheme that must be read purposively and as a whole.

In Khera, these principles support:

reading “could” neither over-technically nor in a vacuum, but in the light of GEN 3.1’s role as a gateway to Article 8-sensitive flexibility;
resisting an interpretation (like the UT’s) that would render the carefully drafted threshold in GEN 3.1(1)(b) almost meaningless by transforming it into a trivial, almost universal gateway.

5.3 Jeunesse v The Netherlands and R (Agyarko and Ikuga) v SSHD [2017] UKSC 11

Jeunesse (ECtHR) and Agyarko (UKSC) deal with the nature of positive obligations under Article 8 in the immigration context and the use of terms such as “exceptional circumstances”.

In Agyarko, the Supreme Court held that:

“Exceptional circumstances” is best understood as describing those cases where, despite non-compliance with the rules, Article 8 nevertheless compels a grant of leave.
It was not intended to create a separate, stricter category than Article 8 itself.

Khera uses this line of authority to confirm that:

the “exceptional circumstances” test in GEN 3.1 and GEN 3.2 tracks the Article 8 analysis rather than displacing it;
what matters is whether there is, in substance, a real risk (GEN 3.1) or certainty (GEN 3.2) of an Article 8 breach, not whether a case is labelled “exceptional” in a colloquial sense.

5.4 Rhuppiah v SSHD [2018] UKSC 58

Rhuppiah is cited particularly on the public interest in economic well-being and financial independence as reflected in section 117B(3) of the 2002 Act. It confirms that:

little weight is given to private life developed when a person’s immigration status is precarious;
the state has a strong and legitimate interest in ensuring migrants are not a burden on the taxpayer and are financially independent.

In Khera, this underpins the Court’s acceptance that:

the MIR and the tight definition of permissible income sources in E‑ECP.3.2 are justified; and
GEN 3.1 is designed as a narrow exception to guard against Article 8 breaches, not as a general mechanism for relaxing the MIR whenever external financial help is available.

5.5 R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28

PACCAR is relied upon for the interpretive principle that legislation (or instruments like the Rules) should not be read so as to produce absurd results.

In Khera, the Secretary of State argued, and the Court accepted, that the UT’s reading of “could” as “mere possibility” produced precisely such an absurd outcome:

In virtually every family case, one could imagine some future chain of events that might render ongoing separation harsh.
If “could” were construed so weakly, GEN 3.1 would effectively force ECOs to consider third-party resources in almost every MIR case, undermining both the structure of Appendix FM and the policy judgments upheld in MM (Lebanon).

6. Clarifying Complex Concepts

6.1 “Real risk” or “realistic possibility” vs “mere possibility”

The judgment draws a vital distinction:

“Mere possibility” means something that might happen in some remote or speculative scenario. It includes fanciful, low-probability outcomes that cannot be grounded in current realities.
“Real risk” or “realistic possibility” means that, on the evidence and present circumstances, there is a genuine and non-trivial chance that the harmful outcome (here, unjustifiably harsh consequences amounting to an Article 8 breach) will eventuate.

In everyday terms:

“It is possible I will be struck by lightning tomorrow” is a mere possibility – the probability is tiny and not grounded in anything particular.
“Given my current medical condition, there is a real chance I will need urgent surgery within months” is a real risk – it is rooted in existing facts and credible evidence.

GEN 3.1 requires the latter, not the former.

6.2 “Exceptional circumstances”

“Exceptional circumstances” in this context does not mean:

wholly unique or unprecedented situations; or
a substantively higher legal threshold than Article 8 itself.

Instead, it functions as:

a descriptor – that cases where the general rules must be departed from in order to comply with Article 8 will be relatively uncommon; and
a reminder to ECOs and tribunals that the norm is to apply the Rules as written, deviating only where Article 8 makes that necessary.

The actual test remains: does the case present a real risk (GEN 3.1) or a clear conclusion (GEN 3.2) that refusal would be a disproportionate interference with Article 8 rights?

6.3 “Unjustifiably harsh consequences”

This phrase encapsulates the proportionality assessment under Article 8:

“Harsh consequences” – the impact on family life or private life must be serious, not trivial or routine. For example, substantial, enduring family separation where relocation is practically impossible or gravely detrimental.
“Unjustifiably” harsh – even serious consequences may be justified by compelling public interests (immigration control, economic well-being, etc.). Only consequences that are disproportionately severe relative to those interests are “unjustifiable”.

This test is highly fact-sensitive. In Khera, the Court accepted that there would be interference with family life (the couple’s separation) but held that, given the option of living together in India with adequate medical treatment, the consequences of refusal were not unjustifiably harsh.

6.4 Extant circumstances and evidential burden

The requirement that there “are exceptional circumstances” and that these be “evident from the information provided by the applicant” has several implications:

The burden lies on the applicant to present information showing the relevant circumstances.
The circumstances must be currently in existence – existing health conditions, family configurations, educational needs of children, etc.
Pure speculation about possible future events, unsupported by present evidence, is insufficient.
However, the ECO should not apply the evidential requirement mechanistically where a small gap could easily be cured and there is otherwise clear indication of a real risk to Article 8 rights.

7. Practical and Doctrinal Impact

7.1 Impact on Entry Clearance Officers and caseworkers

For ECOs and Home Office caseworkers, Khera provides a clear, court-endorsed template:

First, apply the MIR strictly using E‑ECP.3.1–3.3 and E‑ECP.3.2:
- If the MIR is met from the permitted sources, grant under the rules.
If the MIR is not met, ask:
- Is it evident from the applicant’s information that there are current circumstances giving rise to a real risk that refusal could breach Article 8 by causing unjustifiably harsh consequences?
If yes (GEN 3.1 engaged):
- Consider alternative income sources under Appendix FM‑SE 21A(2).
- If, having considered them, the MIR is satisfied, grant leave under the ordinary Appendix FM disposal provisions.
If GEN 3.1 is not engaged, or if the MIR is still not met after GEN 3.1 consideration, move to GEN 3.2:
- Consider whether refusal would breach Article 8 because it would result in unjustifiably harsh consequences.
- If so, grant leave under the GEN 3.2 disposal provisions; if not, refusal can be maintained.

This structured approach reaffirms that GEN 3.1 is not a general licence to relax the MIR whenever third-party support exists, but a targeted protection against real risks of Article 8 breaches.

7.2 Impact on applicants and practitioners

For applicants and their representatives, Khera provides crucial clarity on what must be shown to engage GEN 3.1:

Evidence must demonstrate current, concrete circumstances amounting to a real risk of unjustifiably harsh consequences if entry clearance is refused.
Submissions should avoid relying on remote hypotheticals (“the sponsor’s health might one day deteriorate”) and instead focus on:
- the present health, care, or dependency needs of family members;
- the practical impossibility or extreme difficulty of relocation;
- the real impact on children or vulnerable persons; and
- any other factors that make refusal disproportionate.
Where third-party income is to be relied on, practitioners should ensure that:
- the existence of a real risk under GEN 3.1 is first clearly established; and
- then detailed and reliable evidence of the alternative income is set out, to show that the MIR can in fact be met under Appendix FM‑SE 21A(2).

7.3 Impact on tribunal adjudication (FtT and UT)

For tribunals, Khera imposes a more disciplined structure on appeals involving GEN 3.1 and 3.2:

Tribunals must explicitly identify:
- whether GEN 3.1 is engaged and, if so, on what extant circumstances and evidential basis; and
- how those circumstances amount to a real risk of unjustifiably harsh consequences.
They must avoid the kind of internal inconsistency found in the UT’s remade decision in Khera:
- On the one hand finding that refusal would not result in unjustifiably harsh consequences;
- On the other hand suggesting that a “mere possibility” of such consequences suffices under GEN 3.1.
They should treat “could” and “would” as marking distinct thresholds, not as mere semantic variation:
- “could” = real risk / realistic possibility (gateway to considering alternative finances);
- “would” = full proportionality conclusion (safety net Article 8 grant if the Rules are not met).

7.4 Wider doctrinal implications for Article 8 and the Immigration Rules

Doctrinally, Khera consolidates and extends existing principles by:

Confirming a risk-based calibration of thresholds within the Rules (GEN 3.1 vs GEN 3.2), akin to familiar gradations in other areas of public law (e.g. “real risk” / “serious possibility”).
Reinforcing that domestic rules can and do embody Article 8 balancing, such that compliance with the Rules will ordinarily ensure ECHR compliance, subject to properly limited exceptions.
Bringing clarity to a previously contested and under-theorised area: the precise legal significance of “could” in GEN 3.1(1)(b).

It also underscores that, even in a post‑MM (Lebanon) landscape that mandates flexibility, the courts will uphold the Secretary of State’s legitimate policy choices where the Rules provide a structured, proportionate, and rights‑compliant scheme.

8. Key Takeaways and Conclusion

Secretary of State for the Home Department v Khera is a significant authority on Appendix FM and Article 8, establishing that:

“Could” in GEN 3.1(1)(b) means a real risk or realistic possibility of an Article 8 breach, not a bare or speculative possibility.
The relevant “exceptional circumstances” must be extant and evident from the applicant’s information, not hypothetical future scenarios.
“Exceptional circumstances” and “unjustifiably harsh consequences” are Article 8 concepts, not independent or higher thresholds.
GEN 3.1 is a gateway to considering alternative sources of finance; GEN 3.2 is the ultimate Article 8 safety net where the Rules are not met.
On the facts, the Respondent’s circumstances did not disclose a real risk of unjustifiably harsh consequences, and the ECO’s refusal was lawful.

By clarifying the meaning of “could” and the structure of GEN 3.1 and GEN 3.2, the Court of Appeal has provided much‑needed doctrinal certainty. Future decision-makers and tribunals are now better equipped to:

apply the MIR robustly but fairly;
identify when third-party financial support must be considered to avoid Article 8 breaches; and
maintain the integrity of the Rules while respecting the positive obligations inherent in Article 8.

In short, Khera confirms that Article 8-driven flexibility in financial requirements is real but bounded: it is triggered not by any conceivable hardship, but by a clearly evidenced, realistic risk that refusal would be unjustifiably harsh and therefore disproportionate.