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Arguing Insurmountable Obstacles Under Appendix FM

Posted by: Gherson Immigration

Appendix FM contains the Home Office’s published immigration rules for individuals seeking to acquire legal status in the UK as the dependent spouse, civil partner, fiancé(e), or unmarried partner of a British citizen, settled person or refugee. To apply for immigration status under Appendix FM, the following requirements must be satisfied:

  1. Suitability requirement;
  2. Financial requirement;
  3. Accommodation requirement; 
  4. English language requirement; and 
  5. Genuine relationship requirement. 

If any of these requirements are not met, the visa application will typically be refused.

However, under Paragraph EX1(b) of Appendix FM (and as further explained in Paragraph EX2 of Appendix FM), there are situations where certain aspects of these otherwise mandatory requirements may be waived in light of the ‘insurmountable obstacles’ to family life which a refusal of the application would otherwise cause to the couple concerned. 

It is important to note that the suitability and relationship requirements remain intact and mandatory, even in cases which seek to rely on paragraph EX1(b).

The definition of insurmountable obstacles is as follows:

“EX.2. For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the 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”.

The definition is left intentionally opaque given the multitude of factors which can form ‘insurmountable obstacles’ and do not apply to only limited situations or circumstances. The test is also of a high threshold and is more stringent than a simple consideration of reasonableness. A significant degree of hardship or inconvenience would not meet the test, and the onus is placed on the applicant to prove that removal from the UK would result in ‘unjustifiably harsh consequences’. 

For instance, individuals in same-sex marriages or relationships, who are nationals of countries where homophobic laws are regularly utilised to imprison or discriminate against LGBTQ+ individuals, can utilise paragraphs EX1(b) and EX2 in cases where there may be a failure to otherwise meet the specified requirements of the Partner route under Appendix FM and where the applicant may not be able to return to their home country in order to submit an application.

However, use of the exclusion clause may not always be as black and white. In 2019, the Supreme Court looked at the definition of ‘insurmountable obstacles’ in the context of a British man married to an Indian woman (Lal v SSHD [2019] EWCA Civ 1925). The British man argued he could not live in the hot Indian climate – describing it as an insurmountable obstacle to their relationship continuing outside of the UK further to the refusal of his wife’s visa application. The Court did not strike down the idea in theory, rather it emphasised the necessity of airtight, evidence-based arguments in making this type of claim, as well as the importance of considering all relevant circumstances objectively. It was deemed that to treat the test subjectively would substantially dilute the stringency of the test, and that all facts should be examined in detail.

Insurmountable obstacles are a complex exclusion clause to meeting other eligibility requirements under Appendix FM. However, the courts have not been shy to put the clause to use where it is clear that the obstacles present would entail very serious hardship for the applicant or their partner. 

Gherson has extensive experience with family reunion applications. Please do contact us if you would like to discuss your circumstances and prospects of applying for leave to enter or remain in the UK as the family member of a British national, Settled Person or Refugee.

 

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2020

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