The Secretary of State for the Home Department v Gulshan

Where the family and private life provisions of the Immigration Rules address an Article 8 claim, they are the starting point for the proportionality assessment. A tribunal must assess the relevant requirements, including section EX.1, before considering leave outside the Rules.

Only where there are arguably good grounds for leave outside the Rules is it necessary to ask whether compelling circumstances, insufficiently recognised by the Rules, make refusal disproportionate. Insurmountable obstacles are practical obstacles to relocation, not impossibilities. In their absence, removal requires other non-standard and particular features showing unjustifiably harsh consequences.

The Secretary of State appealed against Judge Pacey’s decision allowing Mrs Gulshan’s appeal on Article 8 grounds. Mrs Gulshan, a Pakistani national, had applied while visiting the United Kingdom to remain with her British-citizen husband. She accepted that she could not meet the Immigration Rules, including the financial and immigration-status requirements.

The First-tier Tribunal nevertheless held that requiring her to return to Pakistan to apply for entry clearance would be disproportionate because of the couple’s age, the cost and inconvenience of travel, and the effect of the minimum-income requirement. The central issue was the correct Article 8 approach after the July 2012 Rules where an applicant did not qualify under them.

1. The Secretary of State’s appeal was allowed. The First-tier Tribunal decision was set aside and re-made. Mrs Gulshan’s appeal against the refusal to vary her leave to remain was dismissed.

2. The judge erred by treating the concession that Mrs Gulshan could not satisfy the Immigration Rules as permitting a free-standing Article 8 assessment. The Rules were the proper starting point because the Secretary of State had addressed family life through Appendix FM, especially EX.1, and private life through paragraph 276ADE.

3. Applying R (on the application of Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin), it was necessary to consider leave outside the Rules only if there were arguably good grounds for doing so. The further question was whether compelling circumstances, not sufficiently recognised by the Rules, made refusal disproportionate.

4. Insurmountable obstacles under EX.1 do not mean literally impossible obstacles. They concern the practical possibility of continuing family life abroad. In their absence, a claimant must show other non-standard and particular features demonstrating unjustifiably harsh consequences.

5. There were no such features. The husband’s income fell substantially below the financial threshold, and also below the figure discussed in MM v Secretary of State for the Home Department [2013] EWHC 1900 (Admin). The medical evidence did not establish material care needs. Age, expense and inconvenience in travelling between the United Kingdom and Pakistan did not create insurmountable obstacles or an unjustifiably harsh result. The husband could travel to Pakistan, and the evidence did not support the assertion that he could no longer live there.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal determination, and re-made the decision by dismissing Mrs Gulshan’s appeal.

• First-tier Tribunal: Judge SJ Pacey, in a decision promulgated on 12 August 2013, dismissed the appeal under the Immigration Rules but allowed it on Article 8 human-rights grounds.