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

For the purposes of Immigration Rules paragraph EX.1(b), insurmountable obstacles are significant difficulties in continuing family life abroad which cannot be overcome or would cause very serious hardship. A judicial review court assesses whether the Secretary of State’s conclusion was reasonable on the material placed before her. It does not substitute its own assessment or treat unadvanced assertions as evidence of an insurmountable obstacle.

Where the decision-maker accepts that a relationship is genuine and knows the British partner’s employment circumstances, further documents which do not materially bear on relocation need not affect the lawfulness of the decision.

The applicant, a Pakistani national who had remained in the United Kingdom after his visit leave expired, sought leave to remain on Article 8 grounds. He was in a genuine relationship with a British citizen, whom he later married.

The Secretary of State refused the application. She found that the requirements of Appendix FM and paragraph EX.1(b) of the Immigration Rules were not met because there were no insurmountable obstacles to the couple continuing family life in Pakistan. She also rejected the private-life and exceptional-circumstances claims.

On judicial review, the applicant confined his challenge to the asserted difficulties for his wife in relocating to Pakistan. The central issue was whether the Secretary of State’s conclusion on insurmountable obstacles was irrational or otherwise unlawful on the material before her.

1. The application was dismissed. Upper Tribunal Judge Dawson held that the applicable approach to paragraph EX.1(b) was that subsequently expressed in paragraph EX.2 of the Immigration Rules. Insurmountable obstacles meant significant difficulties in continuing family life outside the United Kingdom which could not be overcome, or which would entail very serious hardship.

2. The Secretary of State was required to assess the facts and representations actually before her. The claimed difficulties arising from the British partner’s lack of familiarity with Pakistan, language, culture, employment prospects and security concerns had not been advanced in the application material. The applicant’s unpursued protection material did not establish such difficulties for his partner.

3. The Secretary of State had accepted both the genuineness of the relationship and the partner’s employment in the United Kingdom. The later payslips and related documents, although not considered, had no material bearing on the required assessment. There was also no basis for concluding that the Secretary of State had failed to apply her relevant guidance.

4. On judicial review, the Tribunal’s task was not to decide afresh whether it would permit the couple to remain. It was to review the reasonableness of the Secretary of State’s conclusion on the material supplied. That conclusion was within the range of permissible responses and was Wednesbury reasonable.

5. No permission-to-appeal application was made. No order for costs was made.

• Upper Tribunal (Immigration and Asylum Chamber): Permission to bring judicial review was granted by Upper Tribunal Judge Macleman on 6 August 2014. The substantive judicial review application against the Secretary of State’s refusal of leave to remain was dismissed.