The clarification on this point has come via a Court of Appeal judgment in the case of an Indian national who had originally entered the UK on a Student visa. During her leave as a student, she met and married a British citizen and, prior to the expiry of her Student status, applied for leave as the spouse of a British citizen.
Her application was refused on the basis that the Secretary of State did not accept that the relationship was genuine and subsisting. Furthermore, the Secretary of State concluded that it was therefore not necessary to consider whether there were insurmountable obstacles to her continuing family life with her British husband outside of the UK should her application be refused. The Secretary of State also concluded that there were no exceptional circumstances to warrant granting leave to remain outside of the Immigration Rules.
The applicant’s appeal was allowed by the First-Tier Tribunal on the basis that her husband was over the age of 70 and that he was therefore not able to live in the hot Indian climate. The First-Tier Tribunal considered that this would constitute an insurmountable obstacle and would prevent the appellant from continuing her private life with her husband.
The Secretary of State appealed the First-Tier Tribunal’s decision, and the Upper Tribunal decided that the facts of this case were not sufficient to satisfy the legal definition of ‘insurmountable obstacles’ set out in paragraph EX.2 of Appendix FM in the Immigration Rules.
The Immigration Rules give a clear and definitive explanation of the phrase ‘insurmountable obstacles’, confirming that there must be very significant difficulties faced by the applicant or their partner in continuing their family life outside the UK. These difficulties must either be impossible to overcome or must present very serious hardship for either party.
In considering whether the Upper Tribunal had been correct in setting aside the decision of the First-Tier Tribunal, the Court of Appeal determined that the relevant test has two limbs.
Firstly, did the alleged obstacle to enjoying family life outside of the UK constitute a ‘very significant difficulty’?
The Court of Appeal indicated that it was not sufficient to show that the applicant or their partner would face significant hardship, nor was it sufficient to demonstrate inconvenience caused to either party. The Court of Appeal determined that a logical and objective approach must be taken when considering this factor and that it was necessary to identify all the difficulties faced by the parties in order to consider their cumulative impact.
Secondly, the Court of Appeal determined that it was imperative to take into consideration the appellant’s (and her husband’s) right to private and family life under Article 8 of the European Convention on Human Rights. It was the duty of the Upper Tribunal to consider whether there were any exceptional circumstances which would render a refusal of leave to remain disproportionate and would therefore interfere with her right to private life.
It was found that the Upper Tribunal had erred in this consideration, and had given little weight to the issue of the applicant’s private life due to her precarious status as a Tier 4 Student. Indeed, section 117B(4) of the Nationality, Immigration and Asylum Act 2002 (as amended by section 19 of the Immigration Act 2014) provides for little weight to be given to private life considerations where that private life was established during a period when the applicant’s immigration status was considered precarious by virtue of overstaying or otherwise remaining unlawfully in the UK.
It was determined that a relationship formed with a qualifying British partner during a period when the applicant was lawfully in the UK should be afforded sufficient weight as is appropriate in the particular circumstances of each case.
The Court of Appeal stressed the importance of applying a proportionality test to considerations of this nature. Effectively, an assessment must be taken to balance the degree of hardship that the appellant (or their partner) would suffer, and the impact that this would have on their private and family life, against the weight of the public interest.
Given that the Upper Tribunal had failed to consider these material factors, it was ordered that the case be reconsidered.
Gherson has a wealth of experience in dealing with family life and human rights cases. If you have any specific questions or queries in respect of your particular circumstances, please do not hesitate to contact us.
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