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

In an Article 8 immigration case, failure to satisfy Appendix FM does not end the decision-maker’s task. The decision-maker must consider whether compelling circumstances, insufficiently recognised by the Rules, require leave outside them. The “insurmountable obstacles” exception does not require literal impossibility. It must be applied with relevant Home Office guidance, including whether difficulties could reasonably be overcome despite hardship. A case is not exceptional merely because it narrowly misses the Rules. The question is whether refusal would produce unjustifiably harsh consequences and be disproportionate. Where the decision letters adequately address the relevant family-life factors, a separate restatement of each factor is unnecessary.

The claimant, a South African national who had overstayed in the United Kingdom, sought leave to remain on the basis of his relationship with a British citizen. His application was refused under the Immigration Rules and subsequently reconsidered following changes to the Rules and transitional provisions.

He challenged the refusal on transitional grounds and under Article 8 of the European Convention on Human Rights. He argued that Appendix FM had been wrongly applied, that the “insurmountable obstacles” exception imposed too stringent a test, and that the Secretary of State had failed to conduct a proper assessment outside the Rules.

1. The claim was dismissed. The court held that the Secretary of State’s decision was not unlawful and that, in any event, any possible error concerning the transitional application of Appendix FM was immaterial because the outcome was inevitable.
2. The court considered that paragraph A277C probably applied Appendix FM to the pending application, although the issue was not fundamental to the result. Whether the application was considered under Appendix FM followed by an assessment outside the Rules, or directly under the residual Article 8 discretion, the ultimate question was whether refusal was disproportionate.
3. The proper approach was a two-stage process. First, the applicant’s case must be considered under the Rules, including Appendix FM. If the applicant cannot succeed under the Rules, the decision-maker must consider whether compelling circumstances insufficiently recognised by the Rules require leave outside them. Where the Rules have fully addressed the relevant family-life or private-life issues, it may be sufficient to say so.
4. The requirement in EX.1(b) concerning “insurmountable obstacles” did not mean that it had to be literally impossible for the couple to continue family life outside the United Kingdom. Read with the applicable guidance, the question was whether the difficulties could not, or could not reasonably be expected to, be overcome, even with a degree of hardship.
5. Exceptional circumstances did not mean merely unusual or unique circumstances, nor did a narrow failure to satisfy EX.1 establish a “near miss” case. The relevant question was whether refusal would cause unjustifiably harsh consequences and therefore be disproportionate.
6. The decision letters considered the claimant’s unlawful residence, the precarious nature of the relationship, the family circumstances, employment and housing, the possibility of relocation to South Africa, and the hardship involved. No specific unaddressed factor was identified. The refusal was therefore proportionate.

The judgment records that permission for judicial review had been granted and that a rolled-up hearing had been directed. The substantive hearing was later adjourned and came before the present court after the claimant substantially altered the grounds relied upon.