What Are Insurmountable Obstacles For Family Life To Continue Abroad?
Immigration cases in the UK can be very complicated, as they require a substantial amount of supporting evidence and may vary in every situation. Each case is unique in facts and circumstances.
The European Convention on Human Rights (ECHR) governs how fundamental human rights should be protected. As of 2nd October 2000, the rights of the Convention have been applied into domestic law in the UK via the Human Rights Act 1998.
Human rights law acknowledges that people are entitled to a family and private life, but also accepts that a Public Body, such as the Home Office, has the right to control over immigration.
Immigration rules and case laws have explained in detail where a person, who has no legal status, can live in the UK based on family life if there are insurmountable obstacles for family life to continue abroad, and how the public body should maintain an effective immigration control balancing it with the right of the individual concerned. The Supreme Court has set as to how a public body and the lower courts should apply this balance in the case of Agyarko.
Article 8 of the ECHR
Article 8 is a right, but a Public Body can intervene over that right in certain circumstances. Immigration rules are generally acknowledged as being within the framework laid down in the Convention. Furthermore, if the interference is proportionate, a public body may only intrude upon the right of a person to privacy in terms of their private and family life.
The Immigration Rules lay out what the Home Office considers to be the conditions for a compliant article 8 right. The Rules further set out the procedure the applicants will need to meet and the conditions that will be enforced by the Home Office in deciding outcomes on applications under Article 8.
The ECHR has a vital role to play in safeguarding the rights and freedoms set out in the Convention. It is vital that the Court provides sufficient clarification on the implementation of the Convention to permit the primary role of national authorities. It has already been shown that the case-law of the Court on the right to respect family life in immigration cases lacks consistency in procedural and substantive security questions. It is worth noting, moreover, that the Immigration Rules reflect only the interpretation given by the UK government and would not reflect the known case law on Article 8.
In numerous cases over many years, Courts have made it clear that the introduction of the new laws does not affect the requirements on Article 8 that were previously established and that still apply. The new rules and procedures within or outside the Immigration Rules remain the topic of legal challenges, and it is vital that anyone considering applying under Article 8 should be given legal guidance on their rights and prospects.
Every day, insurmountable obstacles and exceptional circumstances are phrases in immigration law, but the most learned of judges have failed to catch their true meaning.
If an individual applies for leave to remain in the United Kingdom on the basis of a qualifying partner such as a British Citizen or settled person but does not meet all the requirements of immigration rules, they could still be able to acquire leave to remain in compliance with Article 8 of the ECHR, on the grounds of their right to private and family life.
This will be possible if they can prove that, as stated in EX.1.(b) of Appendix FM Immigration Rules, they will face’ insurmountable obstacles’ for family life to continue outside of the UK.
The definition of insurmountable obstacles is set out in paragraph EX.2. of Appendix FM as:
“EX.2. For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”[i]
While reviewing a request pursuant to paragraph EX.1.(b) and deciding whether there are insurmountable obstacles, the decision-maker at the Home Office should take into account the individual circumstances of the applicant and its partner, depending on all the information provided.
It is the applicant’s responsibility to demonstrate that there are insurmountable obstacles, not the decision-maker to prove that there are no insurmountable obstacles.
The implementation and interpretation of the insurmountable obstacles provision are intended to strike a balance between the rights of Article 8 and the legitimate goals of regulating immigration matters.Insurmountable obstacles are described as very serious problems faced by the applicant or his partner in continuing their family life together outside the United Kingdom and which could not be overcome or would result in very serious difficulties for the applicant or his partner. Hence, the focus is on the pair’s difficulties in continuing their family life outside the UK.
The principle laid down by the Supreme Court in Agyarko
The Supreme Court considered this immigration case about how the immigration rules comply with Article 8 of the ECHR. In this particular case, two women had been living illegally in the United Kingdom but had established relationships during their stay with their partners. They challenged the Home Office decision of the refusal to allow them to stay in the UK with their partners.
In each case, the Secretary of State’s decision was that the applicant did not qualify to stay under Immigration Rules for leave. In both cases, the Home Office found that no proof of insurmountable obstacles had been presented
The Home Office policy dealing with exceptional circumstances specifies that if an applicant does not comply with the requirements of the Rules, leave may be given outside the Rules where exceptional circumstances exist, in order to ensure compliance with the protection of the applicant under Article 8 of the ECHR. The Home Office found that there were no exceptional circumstances warranting acceptance of a leave grant outside the Rules for both applicants.
Both Mrs Agyarko and Mrs Ikuga took the matter to the Supreme Court, which is the highest Court in the UK.
The Supreme Court unanimously dismissed the appeals and Lord Reed handed down the judgment agreed to by the majority of the Court.
Decisions by the Home Office on the evidence presented by the applicant, the Supreme Court found were on legal grounds. The fundamental question in Article 8 cases was whether, applying a proportionality test, a fair balance was struck between the interest of the public and the individual interests concerned. The Rules and Instructions shall not differ from that position and shall be compliant with Article 8.When considering the present cases, the term “insurmountable obstacles was not specified by the Rules but it was held reasonable to infer that it was meant to have the same sense as in the ECHR’ jurisprudence.
It introduced a rigorous test and was to be understood in a sensible and realistic manner rather than as relating solely to barriers which practically make it impossible for the family to live together in the country of origin of the applicant. This is consistent with the instructions found in the Home Office policy on the identification of insurmountable obstacles, and with the interpretation of that term.
Although the situation was found in the case of Ms Ikuga on an incorrect basis of fact that she was not in a genuine relationship, in any event, the insurmountable challenge failed.
Furthermore, none of the applicants had brought forward anything that could cause exceptional circumstances as set out in the Home Office policy.
Parveen V The Secretary of State For the Home Department on “very significant obstacles”.
The Court of Appeal (COA) gave a partial explanation in an inadequately written appeal as to the importance of very serious barriers to incorporation in Parveen V The Home Department Secretary of State. The Appellant’s historical immigration record was straightforward; Parveen was from Pakistan, who had reached the UK as a spouse to a British citizen in 2000. Her leave expired the following year, and it was only after 13 years that she decided to apply for leave to stay. Her request was denied and eventually ended up at the COA.
The Court of Appeal stated the insurmountable obstacle test means a raised barrier, so the test won’t be met by mere inconvenience or disturbance. However, the Court did not agree with saying that “mere” hardship or difficulty or hurdles, even if magnified, added anything substantial “generally” will not suffice. It was thought that the duty of the Secretary of State, or of the Tribunal, in any given case is merely to ascertain the difficulties relied on for incorporation, whether defined as burden or challenge or anything else and to determine whether they find them “very significant.”
It is clear after this judgment that in order to protect the applicant from any eventuality, including the consideration of private life under 276ADE(1)(vi) and Article 8 outside the rules, very strong legal representations should be provided referring to the applicant’s factual circumstances and any relevant supporting evidence should be prepared thoroughly and adequately addressed.[ii]
Some of the factors relevant to insurmountable circumstances:
- Capacity to enter and reside legally in another country
Preference to live in the UK would not represent an insurmountable obstacle; applicants would show to the decision-maker the applicants ‘ ability to enter and reside in another country lawfully. Decision-makers should consider national policy and knowledge where appropriate.
- Barriers to culture
It may be where the partner is so oppressed that they can not go and live in that area, for example, an LGBT couple where the UK partner faces significant social inequality or where the rights and freedoms of the UK partner are severely constrained.
- Mental or physical incapacity
A physical or mental condition could be such that it could lead to very serious suffering in some cases, due, for example, to a lack of healthcare which was an insurmountable obstacle.
- Security and protection
Particular risks to foreign nationals may lead to insurmountable obstacles which extend to the entire country of return.
Although it has been identified that the criterion of insurmountable obstacles is high, the Agyarko case also states that if the test is not reached, but the rejection of the application would have unjustifiably harsh consequences, the refusal will be considered unlawful and leave can be given in “exceptional circumstances.” Thus, despite a high test threshold, there are many variables which influence a court or tribunal’s decision when each individual case is decided.
In the view of the Home Office, the idea that one entered into a relationship despite getting no visa is unacceptable. Being British doesn’t grant your partner the right to be in the UK, so emotions aren’t enough to resolve the need to keep successful control of immigration.
Therefore, it is imperative that any such application is prepared to the highest standard and all grounds for staying in the UK and not wanting to live abroad should be presented to the Home Office for a better chance of succeeding.
Contact us If you have no legal status in the UK, are in a relationship and cannot live in your home country.