R v Secretary of State for the Home Department

For a partner unlawfully present in the United Kingdom, the requirement of “insurmountable obstacles” to continuing family life abroad means very significant difficulties which cannot be overcome or would entail very serious hardship. The test is stringent, but practical and realistic.

Where that requirement is not met, leave may still be required outside the Immigration Rules if refusal would produce unjustifiably harsh consequences and would therefore be disproportionate. “Exceptional circumstances” describes that proportionality standard; it is not a separate demand for an unusual or unique feature. Family life knowingly established while immigration status is unlawful or precarious ordinarily carries reduced weight, so a very strong or compelling claim is generally required to outweigh immigration control.

Two foreign nationals who had remained unlawfully in the United Kingdom formed relationships with British citizens and applied for leave to remain on family-life grounds. The Secretary of State decided that neither qualified under paragraph EX.1(b) of Appendix FM to the Immigration Rules and that neither case disclosed exceptional circumstances requiring leave outside the Rules under article 8 of the European Convention on Human Rights.

The Upper Tribunal refused permission to seek judicial review. The Court of Appeal dismissed both appeals in [2015] EWCA Civ 440. The appellants appealed to the Supreme Court.

The central issues were the meaning and compatibility of the “insurmountable obstacles” and “exceptional circumstances” standards; the role of precarious family life in proportionality; the effect of Union citizenship and British citizenship; and whether the individual decisions were lawful.

1. Appeals dismissed unanimously. Lord Reed gave the judgment, with which Lady Hale, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hughes and Lord Hodge agreed.
2. Whether removal is analysed as engaging a positive or negative obligation under article 8 is unlikely to matter substantially. The domestic court applies structured proportionality and asks whether a fair balance has been struck between individual family life and the public interest.
3. “Insurmountable obstacles” in paragraph EX.1(b) of Appendix FM is a stringent but practical and realistic standard. Before paragraph EX.2 supplied an express definition, the phrase bore the same meaning: very significant difficulties in continuing family life outside the United Kingdom which could not be overcome or would entail very serious hardship.
4. The Immigration Rules reflect the Secretary of State’s general policy assessment of the article 8 balance, endorsed by Parliament. Courts must independently decide individual challenges, considering all relevant circumstances, but must give considerable weight to that policy. The Rules and Instructions were compatible with article 8 because leave remained available outside the Rules where refusal would cause unjustifiably harsh consequences and would be disproportionate.
5. Precariousness is not a preliminary hurdle. Where family life was established in full knowledge that residence was unlawful or precarious, that fact reduces its weight in the proportionality balance. Its significance depends on the actual public interest in removal. That interest may be slight where entry clearance is otherwise certain and may diminish through protracted delay in enforcement.
6. “Exceptional circumstances” does not impose an exceptionality test requiring a unique or unusual feature. It identifies circumstances in which refusal would be disproportionate. In cases of precarious family life, a very strong or compelling claim is generally needed to outweigh immigration control.
7. Article 20 TFEU did not give the appellants derived rights. Such a right arises only in very specific situations where refusal would in practice oblige the Union citizen to leave the European Union as a whole. Section 1(1) of the Immigration Act 1971 did not entitle a British citizen to insist that a non-national partner be permitted to reside in the United Kingdom.
8. The first appellant had shown neither insurmountable obstacles nor exceptional circumstances. The second decision contained a factual error about cohabitation, but quashing was refused because the specialist tribunal was entitled to conclude that reconsideration would inevitably produce the same result. Standardised reasons are not inherently unlawful if they adequately explain the decision.

1. United Kingdom Supreme Court: dismissed both appeals unanimously and affirmed the Court of Appeal’s refusal of relief.
2. Court of Appeal: in [2015] EWCA Civ 440, dismissed both appeals from refusals of permission to apply for judicial review.
3. Upper Tribunal: refused each appellant permission to apply for judicial review. In the second appellant’s case, it accepted a factual error but held that the application was bound to fail in any event.