Agyarko & Ors, R (on the application of) v The Secretary of State for the Home Department

The requirement of “insurmountable obstacles” in Appendix FM imposes a stringent but sensible and practical test. It demands substantially more than showing that relocation would be unreasonable or difficult.

Where family life was established while the applicant’s immigration status was known to be precarious, Article 8 will ordinarily require leave outside the Immigration Rules only in exceptional circumstances. Insurmountable obstacles are a material factor in that assessment, but they are not an absolute prerequisite.

An applicant relying on the prospect of a successful entry-clearance application must provide material showing that the applicable requirements would be met. Judicial review may be refused where correcting an error could serve no sensible purpose because the lawful outcome is inevitable.

Three overstayers formed relationships with British citizens after their limited leave had expired. The Secretary of State refused their applications for leave to remain under Appendix FM of the Immigration Rules and outside the Rules under Article 8 of the European Convention on Human Rights.

The Upper Tribunal refused Mrs Agyarko and Mrs Ikuga permission to seek judicial review. Mrs Evans commenced her judicial review claim out of time and was refused an extension. The principal appeals concerned the meaning of “insurmountable obstacles”, the protection afforded to family life established during unlawful residence, and whether removal to make an entry-clearance application would be disproportionate.

Mrs Ikuga also contended that the Secretary of State had assessed her residual discretion upon an incorrect understanding of whether she cohabited with her partner.

1. The appeals of Mrs Agyarko and Mrs Ikuga were dismissed. Permission to appeal on Mrs Ikuga’s additional grounds and Mrs Evans’s renewed application for permission to appeal were refused. Sales LJ gave the judgment of the court. Gloster and Longmore LJJ agreed.

2. The expression “insurmountable obstacles” in Section EX.1(b) of Appendix FM imposes a high hurdle. It is significantly more demanding than asking whether it would be reasonable for a couple to continue family life outside the United Kingdom. The expression must nevertheless be applied sensibly and practically, rather than with pure literalism. In both substantive appeals, the evidence disclosed hardship and reluctance to relocate but no insurmountable obstacle: paras [20]–[26], [49]–[50].

3. Within the Immigration Rules, the criterion is a precondition to entitlement under Section EX.1(b). In the wider Article 8 assessment outside the Rules, it is an important factor rather than an absolute requirement. An Article 8 claim may therefore succeed despite the absence of insurmountable obstacles, although the gap between the Rules and Article 8 is likely to be small in cases involving precarious family life: paras [24], [28]–[31].

4. Where family life was established with knowledge that the applicant had no right to remain, Article 8 will require leave outside the Rules only where the circumstances are exceptional. A partner’s British citizenship does not by itself make the case exceptional. Neither appellant had children or demonstrated other compelling circumstances: paras [28], [32]–[33], [49]–[51].

5. The principle in Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 may apply where an out-of-country application would clearly succeed and temporary removal serves no good purpose. In a precarious-family-life case, exceptional circumstances would still be required. Neither appellant had raised such a case before the Secretary of State or supplied material establishing that the demanding entry-clearance requirements would be satisfied: paras [31], [34]–[35], [51].

6. Decision-makers should avoid formulaic or “tick box” reasoning when considering leave outside the Rules. Mrs Agyarko’s decision letter lacked clarity, but its treatment of her overstaying and the weakness of her Article 8 claim meant that the deficiencies did not make the decision unlawful: paras [36]–[37].

7. A failure to exercise residual discretion upon a correct understanding of the facts can in principle found judicial review. Mrs Ikuga’s claim was nevertheless properly refused because reconsideration could not realistically produce a grant of leave. Judicial review would therefore serve no sensible purpose: paras [52]–[53].

1. Court of Appeal (Civil Division): Dismissed the substantive appeals of Mrs Agyarko and Mrs Ikuga in [2015] EWCA Civ 440. It also refused permission on Mrs Ikuga’s additional grounds and Mrs Evans’s renewed application.

2. Upper Tribunal (Immigration and Asylum Chamber): Refused Mrs Agyarko permission to seek judicial review. It refused Mrs Ikuga permission after an oral renewal, holding that the alleged obstacles to relocation and her Article 8 case were unarguable. It also refused Mrs Evans an extension of time and permission on the merits.

3. High Court: Simler J refused Mrs Evans an extension of time and permission to seek judicial review.