Insurmountable obstacles and exceptional circumstances in the Supreme Court

In addition to the judgement in  R (on the application of MM (Lebanon)) v Secretary of State for the Home Department published today, covered on this blog here, the Supreme Court has handed down judgement in R (on the application of Agyarko) v Secretary of State for the Home Department [2017] UKSC 11 today.

Like MM (Lebanon) this case was concerned with whether provisions of the Immigration Rules are compatible with Article 8 of the ECHR.  Specifically the court considered whether the requirement for foreign spouses of British citizens, who have resided unlawfully in the UK, to demonstrate “insurmountable obstacles” to family life continuing outside the UK was lawful. This requirement is imposed by paragraph EX.1.(b) of Appendix FM of the Immigration Rules. The court also considered whether the Home Office’s policy of granting leave to remain outside the Rules only in “exceptional circumstances” was lawful.

The court examines the definition and application of these thresholds by the Secretary of State and the courts. In relation to “insurmountable obstacles” the court observes that the phrase should be:

“...understood in a practical and realistic sense, rather than as referring solely to obstacles which make it literally impossible for the family to live together in the country of origin of the non-national concerned.” [43]

The court endorses the definition provided in paragraph EX.2 of the Immigration Rules, determining that this definition appears “to be consistent with the meaning which can be derived from the Strasbourg case law.” [44] Paragraph EX.2 defines insurmountable obstacles as “very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”

In relation to “exceptional circumstances” the court notes that:

“Cases are not, therefore, to be approached by searching for a unique or unusual feature, and in its absence rejecting the application without further examination. Rather, as the Master of the Rolls made clear, the test is one of proportionality. The reference to exceptional circumstances in the European case law means that, in cases involving precarious family life, “something very compelling ... is required to outweigh the public interest”” [56]

Both tests were held to be compatible with the right to respect for private and family life under Article 8:

“In the absence of either “insurmountable obstacles” or “exceptional circumstances” as defined, however, it is not apparent why it should be incompatible with article 8 for leave to be refused. The Rules and Instructions are therefore compatible with article 8. That is not, of course, to say that decisions applying the Rules and Instructions in individual cases will necessarily be compatible with article 8: that is a question which, if a decision is challenged, must be determined independently by the court or tribunal in the light of the particular circumstances of each case.” [48]

“It remains the position that the ultimate question is how a fair balance should be struck between the competing public and individual interests involved, applying a proportionality test. The Rules and Instructions in issue in the present case do not depart from that position. The Secretary of State has not imposed a test of exceptionality, in the sense which Lord Bingham had in mind: that is to say, a requirement that the case should exhibit some highly unusual feature, over and above the application of the test of proportionality. On the contrary, she has defined the word “exceptional”, as already explained, as meaning “circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate”. So understood, the provision in the Instructions that leave can be granted outside the Rules where exceptional circumstances apply involves the application of the test of proportionality to the circumstances of the individual case, and cannot be regarded as incompatible with article 8. That conclusion is fortified by the express statement in the Instructions that “exceptional” does not mean “unusual” or “unique”: see para 19 above” [60]