R (Agyarko) v Secretary of State for the Home Department

These appeals concern applications by unlawfully resident non-nationals for leave to remain as partners of British citizens. The central legal principles are the duty under the Human Rights Act 1998 to act compatibly with article 8 ECHR, the operation of Appendix FM (in particular paragraph EX.1(b) concerning "insurmountable obstacles") and the Secretary of State's Instructions which permit grants outside the Rules where "exceptional circumstances" exist. The Court held that the phrase "insurmountable obstacles" should be read in the same stringent, practical sense as in Strasbourg jurisprudence and that the Instructions' requirement of "exceptional circumstances" is a proportionality-based safety valve and therefore compatible with article 8. The Rules and Instructions were held to fall within the Secretary of State's margin of appreciation and to be compatible with EU law as interpreted by the Court of Justice. On the facts, neither appellant established insurmountable obstacles nor exceptional circumstances sufficient to outweigh the public interest in immigration control, and the appeals were dismissed.

The appeals were brought by two foreign nationals (Ms Agyarko and Ms Ikuga) who had remained in the United Kingdom in breach of immigration laws and then applied for leave to remain as partners of British citizens. Both were refused: under Appendix FM the Secretary of State concluded they did not meet paragraph EX.1(b) (that there were "insurmountable obstacles" to family life continuing outside the UK) and, applying the Family Members Instructions, that there were no "exceptional circumstances" warranting leave outside the Rules.

Procedural history: both applicants were refused by the Secretary of State; permission to apply for judicial review was refused by the Upper Tribunal in each case; both appeals to the Court of Appeal were dismissed ([2015] EWCA Civ 440). The cases then came to the Supreme Court.

Issues framed:

• whether the correct approach to removal of a non-settled migrant is a positive-obligation or proportionality analysis under article 8;
• the meaning and lawfulness of the "insurmountable obstacles" requirement in paragraph EX.1(b) of Appendix FM (as drafted prior to EX.2 being inserted);
• the role of "precariousness" when family life was formed knowing immigration status was insecure;
• whether the Instructions may lawfully require "exceptional circumstances" to justify leave outside the Rules; and
• whether Appendix FM is incompatible with EU law (notably Ruiz Zambrano and related CJEU authorities) or with section 1(1) of the Immigration Act 1971.

Court's reasoning: the Court treated the question under article 8 as one of proportionality, applying established Strasbourg factors. It concluded that "insurmountable obstacles" is to be read in the stringent, realistic sense shown by Strasbourg case law and that, as a matter of domestic law, the Secretary of State was entitled to frame Rules which will normally weigh against granting leave to those unlawfully resident unless that test (or the separately defined "exceptional circumstances" safety valve) is met. "Precariousness" is not a separate preliminary hurdle but a factor reducing the weight of family life in the balance. The Instructions' definition of "exceptional circumstances" was interpreted as a proportionality test and therefore compatible with article 8. The Court rejected the appellants' EU law challenge: the CJEU case law reserves the Ruiz Zambrano-type protection to narrow situations where refusal would force the EU citizen to leave the Union as a whole. Finally, applying these principles to the facts, the Court held that neither appellant demonstrated insurmountable obstacles or exceptional circumstances; the Secretary of State's decisions were lawful and the appeals were dismissed.

Appeals dismissed. The Supreme Court held that Appendix FM's requirement of "insurmountable obstacles" should be read consistently with Strasbourg jurisprudence and that the Instructions' "exceptional circumstances" safety valve is a proportionality-based mechanism compatible with article 8. The Rules and Instructions fall within the Secretary of State's margin of appreciation and are not unlawful under EU law. On the facts, neither appellant satisfied the tests and the refusals were lawful.

On the facts in these judgments the applicants were refused by the Secretary of State; permission to apply for judicial review was refused by the Upper Tribunal; both were granted permission to appeal to the Court of Appeal but their appeals were dismissed ([2015] EWCA Civ 440). The appeals to the Supreme Court were then heard and dismissed ([2017] UKSC 11).