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

Under Appendix FM, "insurmountable obstacles" is a stringent but practical test. It does not require literal impossibility. It requires very significant difficulties in continuing family life abroad which cannot be overcome, or which would entail very serious hardship.

In an Article 8 case involving family life formed while a person was unlawfully present, proportionality remains the ultimate question. The strong public interest in immigration control will ordinarily be outweighed only by compelling or exceptional circumstances. Bare assertions about employment, financial support, medical treatment or conditions abroad will not establish an arguable legal flaw in a refusal of leave.

The appellant, a Tanzanian national who had remained in the United Kingdom after her visitor leave expired, sought leave to remain as the spouse of a British citizen. Her application relied on her husband’s medical conditions and contended that family life could not continue in Tanzania.

The Secretary of State rejected the application under Appendix FM to the Immigration Rules, finding no insurmountable obstacles to relocation. Permission to seek judicial review was refused, first on the papers and then by the Upper Tribunal. The appellant appealed to the Court of Appeal.

The central issues were whether an alleged error concerning the husband’s country of birth mattered, and whether the evidence established an arguable case that refusal of leave was disproportionate under Article 8.

1. Appeal dismissed. Lord Justice McCombe, with whom Lord Justice Newey and the President of the Queen’s Bench Division agreed, held that the Upper Tribunal had rightly refused permission to apply for judicial review.

2. The husband’s assumed Tanzanian birthplace was not material. The real issue was whether it was arguable that the Secretary of State had irrationally concluded that there were no insurmountable obstacles to the couple continuing family life in Tanzania. That issue did not turn on his original country of birth.

3. The court applied R (Agyarko) v SSHD [2017] UKSC 11. In Appendix FM, the expression is to be understood practically and realistically, rather than as literal impossibility. It nevertheless imposes a stringent standard: very significant difficulties in continuing family life abroad which cannot be overcome, or which would entail very serious hardship.

4. Article 8 required a proportionality assessment. The public interest in effective immigration control had to be balanced against the impact on family life. Where family life was begun and continued while the applicant was unlawfully present, exceptional or very compelling circumstances would normally be required to outweigh that public interest.

5. Those circumstances were absent. The evidence of an inability to work, inability to obtain support in Tanzania, and inadequate medical treatment there was tenuous. There was no evidence from the husband, no evidence about either spouse’s employment prospects or available support, and no adequate evidence that necessary medication or care would be unavailable. The alleged obstacles were therefore unsupported assertions and the proposed judicial review had no real prospect of success.

• Court of Appeal (Civil Division): dismissed the appeal from the Upper Tribunal’s refusal of permission to apply for judicial review: [2017] EWCA Civ 1949.
• Upper Tribunal (Immigration and Asylum Chamber): on 15 January 2015, Upper Tribunal Judge Southern refused permission to apply for judicial review and refused permission to appeal.
• High Court: Simler J had previously refused judicial review permission on the papers.