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

Where an application under the Immigration Rules does not fully address the applicant’s private or family life, the decision-maker must undertake a proper Article 8 proportionality assessment. The assessment must not reduce the issue to whether there are literal impossibilities or “insurmountable obstacles” to relocation. That expression concerns the practical possibility of continuing family life abroad. The decision-maker must consider all relevant circumstances, including the effect of relocation on a British citizen who has spent his life in the United Kingdom, the parties’ immigration history, and any relevant risk of violence. A brief or formulaic decision which merely assumes that relocation is possible will not demonstrate lawful consideration of Article 8.

The claimant, a Ukrainian national married to a British citizen, challenged refusal of her application for leave to remain as a spouse. She accepted that she did not satisfy Appendix FM of the Immigration Rules but relied on Article 8 outside the Rules. The Secretary of State’s original decision focused on the absence of insurmountable obstacles to family life continuing in Ukraine. A later review added brief reasons concerning relocation but did not materially engage with the claimant’s private and family life, the effect on her husband, or her concerns about domestic violence. The central issue was whether those decisions demonstrated a lawful Article 8 assessment.

1. Claim allowed. The decision refusing leave to remain and the refusal to reconsider it were quashed. Permission to appeal was refused. Costs were awarded in the sum of £1,450 plus VAT.
2. The approach identified in Gulshan v Secretary of State for the Home Department [2013] UKUT 00640 and Nagre v Secretary of State for the Home Department [2013] EWHC 720 required the decision-maker first to apply the relevant Rules and then, where they did not fully address the Article 8 issues, to consider Article 8 outside the Rules. A formulaic reference to exceptional circumstances was insufficient. The decision-maker had to stand back and assess whether refusal would be disproportionate.
3. “Insurmountable obstacles” concerned the practical possibilities of relocation and did not require proof of absolute impossibility. Even if that threshold was not met, other non-standard and particular features could make removal unjustifiably harsh. The Secretary of State had not shown that this test was understood or applied.
4. The reasons failed to engage materially with the practical and cultural consequences of requiring a British citizen who had lived in the United Kingdom all his life to relocate abroad, or with the effect on his established business, family and other ties. The observations of Lord Justice Sedley in AB (Jamaica) v Secretary of State for the Home Department [2007] EWCA Civ 1302 were apt. The domestic-violence concerns, although briefly raised, were also relevant to the Article 8 balancing exercise, alongside the claimant’s irregular immigration status.
5. The evidence was limited but sufficient to require a proper Article 8 assessment. The later review did not cure the original failures.

This was a first-instance judicial review. Permission to appeal from the judgment was refused.