Singh, R (on the application of) v Secretary of State for the Home Department

In an Article 8 immigration case, an insurmountable obstacle ordinarily means a legal or physical impediment to the family joining the person removed in the country of return. Serious disruption, hardship, or the undesirability of relocation does not necessarily meet that threshold. A decision-maker may identify one factor as particularly important without showing that every countervailing consideration was ignored. A person refused leave to remain may be required to apply for entry clearance from abroad, even where success is uncertain. Knowledge that immigration status is precarious is a legitimate factor in assessing proportionality.

The claimant, an Indian citizen whose asylum claim had failed, married a Malaysian national living in the United Kingdom with her three children. The Adjudicator accepted that removal would interfere with family life but found the interference proportionate, principally because of the short relationship and the family’s knowledge of the claimant’s precarious immigration status. The Immigration Appeal Tribunal refused leave to appeal.

On judicial review, the claimant argued that relocation to India presented insurmountable obstacles, that excessive weight had been given to knowledge of his status, and that the difficulties of obtaining entry clearance had not been considered.

1. The application was dismissed. The Adjudicator was entitled to conclude that removal was proportionate under Article 8.
2. Relocation would be difficult and undesirable, but there was no legal prohibition, governmental impediment, or physical reason preventing the family from entering India. The obstacles were therefore not insurmountable. The paradigm case involves an inability, because of the destination country’s rules, authorities, or a physical reason, for a family member to enter that country.
3. A decision-maker may attach particular weight to one factor when explaining an Article 8 conclusion. That emphasis does not show that countervailing circumstances were ignored where the reasoning demonstrates that the material facts were before the decision-maker.
4. The claimant was not entitled to rely on uncertainty about a future entry-clearance application. Under rule 281 of the Immigration Rules HC395, an application for settlement from India would require adequate accommodation and maintenance without recourse to public funds. The possibility of failure did not remove the requirement to apply from outside the United Kingdom.
5. The interference arose from the couple’s decision to marry despite the claimant’s precarious immigration status, rather than from direct State interference. The approach adopted by the Adjudicator and Tribunal was legally permissible.

The Adjudicator decided the claim on 26 March 2002. The Immigration Appeal Tribunal refused leave to appeal on 5 May 2002. The Administrative Court dismissed the judicial review application.