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

For private-life applications, the “no ties” requirement in paragraph 276ADE(vi) of the Immigration Rules is exacting. It asks whether the applicant has any continuing social, cultural or family connection with the country of return, assessed in the round. It is not a comparison of relative ties. Under Appendix FM paragraph EX.1(b), “insurmountable obstacles” means very significant difficulties which cannot be overcome or would entail very serious hardship. Bare assertions, ordinary hardship or a preference for life in the UK do not meet that threshold. Article 8 exceptional circumstances require a fact-specific proportionality assessment. Where immigration control carries substantial weight, a strong or compelling claim is needed. The Court of Appeal allowed the appeal because those standards were not met.

An Indian national who had lived unlawfully in the United Kingdom since 2007 applied for leave to remain on private- and family-life grounds. She relied on her relationship with her husband, the presence of her adult children and grandchildren in the United Kingdom, paragraph 276ADE(vi), and Appendix FM paragraph EX.1(b).

The Secretary of State refused the application and maintained that decision in a supplemental letter. A Deputy High Court Judge quashed the decision on the insurmountable-obstacles and no-ties issues, but rejected the challenge based on exceptional circumstances. The Secretary of State appealed. The respondent also sought to rely on fresh evidence and additional arguments concerning delay and the Chikwamba principle. The central issues were whether the decision-maker had lawfully applied the relevant tests and whether the additional points could be raised on appeal.

1. Appeal allowed. All five grounds of appeal succeeded. The Deputy High Judge’s order quashing the Secretary of State’s decision was set aside. The fresh evidence was refused and the additional grounds in the Respondent’s Notice were rejected.
2. Insurmountable obstacles. Paragraph EX.1(b) of the Immigration Rules required very significant difficulties in continuing family life outside the United Kingdom which could not be overcome or would entail very serious hardship. The test was stringent. Evidence about the couple’s established life in the United Kingdom, their preferences, and ordinary hardship or inconvenience did not establish the necessary obstacle. The application contained bare assertions and did not explain the couple’s financial position or the respondent’s circumstances in India. The Deputy Judge had wrongly treated the practical possibility of relocation as sufficient and had wrongly criticised the Secretary of State for failing to address matters insufficiently raised or evidenced. [2017] UKSC 11 and [2017] 1 WLR 823 clarified the correct approach.
3. No ties. Paragraph 276ADE(vi) required an exacting assessment of whether the applicant had no ties to the country of return. It was not a balancing exercise between stronger ties to the United Kingdom and weaker ties to India. The applicant’s long residence in India, age when she left, continuing links with Indian language and culture, and the absence of evidence about her former family and social connections entitled the Secretary of State to conclude that she had not become a stranger to India.
4. Article 8 and exceptional circumstances. The Secretary of State’s test of whether refusal would cause unjustifiably harsh consequences such that it was disproportionate was materially consistent with the proportionality approach in [2017] UKSC 11. A strong or compelling claim was required to outweigh the public interest in immigration control. Although the family relationship predated the parties’ residence in the United Kingdom, there remained a strong public interest where a person joined a spouse settled in the United Kingdom without obtaining the necessary entry clearance. No sufficient claim was shown.
5. Fresh points and evidence. A new point which could have been raised below, and which would require evidence and factual findings, required permission. The Chikwamba argument was raised too late and could not be determined fairly without a further hearing. The proposed evidence was available below, was raised late, and was not capable of assisting the case under the Ladd v Marshall principles. The court therefore refused permission and declined to admit the evidence.

1. Court of Appeal (Civil Division): allowed the Secretary of State’s appeal and set aside the order below: [2018] EWCA Civ 1423.
2. High Court of Justice, Queen’s Bench Division, Administrative Court: a Deputy High Court Judge quashed the Secretary of State’s decision as irrational and unreasonable on the insurmountable-obstacles and no-ties issues.