Lal v The Secretary of State for the Home Department

The test for an “insurmountable obstacle” to partners continuing family life outside the United Kingdom is practical and objective, while taking account of their individual characteristics. The decision-maker must identify any very significant difficulty, decide whether it makes continuation of family life impossible and, if not, determine whether reasonable mitigation would still leave very serious hardship. All difficulties must be assessed cumulatively.

A relationship formed while a person is lawfully present but has precarious immigration status does not automatically attract little weight under section 117B of the Nationality, Immigration and Asylum Act 2002. Its weight depends on the particular relationship, immigration status and history. The exceptional-circumstances assessment requires proportionality: the impact on family life must be balanced against the public interest in immigration control.

An Indian national married a British citizen while she had valid limited leave. The Secretary of State refused her application to remain because the relationship was considered neither genuine nor subsisting. The First-tier Tribunal rejected that finding and allowed her appeal, holding that her husband’s inability to cope with India’s heat constituted an insurmountable obstacle to continuing family life there.

The Upper Tribunal set that decision aside and dismissed the human-rights appeal. It found the evidence insufficient to establish insurmountable obstacles and concluded that no exceptional circumstances made removal disproportionate under article 8 of the European Convention on Human Rights.

The appeal concerned the proper assessment of insurmountable obstacles, the treatment of family life formed during precarious but lawful immigration status, and the proportionality test for exceptional circumstances outside the Immigration Rules.

1. Appeal allowed. The Upper Tribunal’s decision dismissing the human-rights appeal was set aside, but the court made no further order because the Secretary of State agreed to reconsider the application.

2. Under paragraphs EX.1(b) and EX.2 of the Immigration Rules, the decision-maker should first determine whether an alleged obstacle is a very significant difficulty. If so, the decision-maker must ask whether it makes continuation of family life abroad impossible. If continuation remains possible, the final question is whether, after accounting for reasonable avoidance or mitigation, it would entail very serious hardship. The test is practical and realistic and must account for the individuals’ particular characteristics. A partner’s subjective belief that relocation is impossible does not itself satisfy the test.

3. The First-tier Tribunal had inadequately reasoned its conclusion because the accepted evidence about intolerance of heat did not establish impossibility or very serious hardship. The Upper Tribunal was therefore entitled to set its decision aside. In remaking the decision, however, the Upper Tribunal unlawfully assessed age, sensitivity to heat and ties to the United Kingdom separately. It had to assess their cumulative impact. That error could have affected the outcome.

4. Section 117B(4) of the Nationality, Immigration and Asylum Act 2002 requires little weight to be given to a qualifying relationship formed while a person is in the United Kingdom unlawfully. Section 117B(5) concerns only private life formed while immigration status is precarious. Neither provision requires little weight to be given to family life formed while a person is lawfully present but lacks indefinite leave. The appropriate weight depends on the particular relationship, immigration history and status.

5. The Upper Tribunal also applied the wrong exceptional-circumstances test. It asked whether the couple could live abroad without serious hardship. The correct question was whether refusal would cause unjustifiably harsh consequences and therefore be disproportionate. That required the impact on family life to be balanced against the public interest in immigration control.

6. Fresh consideration was appropriate because the original refusal rested on an erroneous assessment of the relationship and an incorrect belief that the applicant had overstayed. The parties’ subsequently born British daughter also required consideration under paragraph EX.1(a) of the Immigration Rules and section 117B(6) of the 2002 Act.

1. Court of Appeal (Civil Division): Allowed the appeal in [2019] EWCA Civ 1925, set aside the Upper Tribunal’s dismissal and made no further order, leaving the Secretary of State to reconsider the case.

2. Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s decision for inadequate reasoning, remade the decision and dismissed the human-rights appeal.

3. First-tier Tribunal (Immigration and Asylum Chamber): Allowed the appeal. It found a genuine and subsisting relationship and accepted that the husband’s intolerance of India’s heat constituted an insurmountable obstacle.

4. Secretary of State: Refused leave to remain, principally because the marriage was not accepted as genuine and subsisting.