This is the sequel to the SS (Congo) case analysed in the last post. To do with leave to remain rather than leave to enter, this case involved overstayers who relied on their relationships with British citizens in order to obtain visas. The Court of Appeal (Longmore, Gloster and Sales LJJ) held that for leave to remain to be granted on that basis a claimant needed either to show “insurmountable obstacles” to continuing family life outside the UK or needed to demonstrate “exceptional circumstances” under article 8 ECHR. Mrs Agyarko and Mrs Ikuga were aggrieved by the Upper Tribunal’s refusal of permission to apply for judicial review proceedings of the Home Office’s refusal to grant them leave to remain. Agyarko (a Ghanaian) and Ikuga (a Nigerian) relied on their respective family lives to get leave to remain. However, their applications were refused because they failed on section EX.1(b) of Appendix FM of the Immigration Rules in light of the finding that there were no “insurmountable obstacles” preventing them from continuing their relationships outside the UK and that no exceptional circumstances under article 8 existed.
The court dismissed the appeals in light of Nagre  EWHC 720 (Admin) – a judgment that is said to contain “an accurate statement of the law”. In line with his own decision from a couple of years ago, Sales LJ (as he now is) held that where a person unlawfully overstays and forms a relationship or gets married and wishes to remain the UK, the test of “insurmountable obstacles” is a “stringent” test. The court, moreover, explained that although the test is also to be interpreted in a sensible and practical rather than a purely literal way, it is more demanding than a mere test of whether it would be reasonable to expect a couple to continue their family life outside the UK.
Mrs Agyarko (born in 1962, the first appellant) and Mr Benette, a naturalised British Citizen, entered into a marriage by proxy in August 2012 in accordance with Ghanaian law. They do not have children. An application for leave to remain was made in September 2012. It was accompanied by supporting documentation, detailing self-employment and two jobs, for the year ending 5 April 2012 which stated that Mr Benette’s income for that year had been £3,302 gross from one employment, £14,876 gross from the second employment and £9,326 gross from self-employment.
Mrs Ikuga (born in 1974, the third appellant) entered the UK in March 2008, overstayed unlawfully and in 2011 she entered into a relationship with Mr Ijiekhuamhen, a British citizen. They do not have children. Relying on her right to family life she argued that such life “could not be maintained and enjoyed in Nigeria as she is trying to conceive” and drew attention to private fertility treatment she had been receiving in the UK for which her partner had been paying. She also claimed her right to remain on the basis of her close relationship with her sister and her children and argued that her family life could not reasonably be expected to be enjoyed elsewhere.
In both cases the relationship relied upon for leave to be granted was formed in circumstances of known precariousness. In relation to Mrs Ikuga, the authorities felt that there was no evidence to show that she was in a genuine relationship with Mr Ijiekhuamhen. In both cases, the Upper Tribunal refused applications for permission to apply for judicial review. Mrs Evans, the second appellant, also had her application for leave to remain refused in similar circumstances as the other two appellants. Her application for permission to apply for judicial review, which was out of time, had been refused on three occasions on the merits and also on extending time and on the papers Underhill LJ had refused permission stating the rationale below was “unimpeachable”. Sales LJ therefore held at para 56 that “[i]t is unnecessary and inappropriate for us to review the detailed substantive merits of claim for judicial review.”
Agyarko, Ikuga and Evans argued that there were errors of decision-making in their article 8 cases. Ikuga, moreover, submitted that the Upper Tribunal had failed to consider whether the Home Office should reconsider, on the true facts, the exercise of discretion on the basis of evidence of her genuine relationship.
Court of Appeal
The court dismissed the appeals. In light of the ECtHR’s decision in Jeunesse v Netherlands (2015) 60 EHRR 17, Sales LJ said at paras 22 and 23 that the test of “insurmountable obstacles” in Appendix FM is “stringent”. However, he also held that the expression “is obviously intended in both the case-law and the rules to be interpreted in a sensible and practical rather than a purely literal way.” His Lordship threw further light on the position of the expression in the rules and explained that in that regard it was not simply a factor to be taken into account because under the rules “insurmountable obstacles” defines “one of the preconditions set out in section EX.1(b) that needed to be satisfied before an applicant could claim to be entitled to be granted leave to remain.” On the other hand, applying Nagre the court held that within the wider article 8 context, the criterion is a mere factor to be taken into account and is:
24. … not an absolute requirement which has to be satisfied in every single case across the whole range of cases covered by article 8.
The court found that the decision that there were no insurmountable obstacles to family life between Mrs Agyarko and Mr Benette continuing outside the UK was not irrational or unlawful in any way. As regards Chikwamba  UKHL 40, Sales LJ held at para 27 that in cases where an application for leave to enter would be successful from abroad and removing an applicant served no good purpose it was possible to envisage circumstances where leave might be granted outside the rules, notwithstanding that there were no insurmountable obstacles to the applicant and spouse continuing their family life overseas.
Sales LJ embraced the opportunity to shine a light on what he at para 30 termed the “gap between section EX.1 of Appendix FM and what article 8 might require in some cases.” Reiterating his position at paras 41–48 of Nagre, and pointing to Rodrigues da Silva and Hoogkamer v Netherlands (2007) 44 EHRR 34 and Jeunesse v Netherlands, Sales LJ reminded us that “[i]In relation to precarious family life cases, as I observed in Nagre at para 43, the gap between section EX.1 and the requirements of article 8 is likely to be small.”
Accordingly, the mere possibility of a “Chikwamba type case” did not warrant the grant of leave outside the rules to be granted and at para 31 it was held that “in a case involving precarious family life, it would be necessary to establish exceptional circumstances to warrant such a conclusion.”
In Agyarko’s case it had been rational to decide that there were no insurmountable obstacles to family life between her and her husband continuing outside the UK. Equally, the mere fact of Mr Benette’s British citizenship did not in itself amount to exceptional circumstances obliging the authorities to grant leave and Sales LJ stated at para 33 that the ECtHR “did not suggest that such a feature on its own could constitute exceptional circumstances” in Jeunesse v Netherlands. Instead, in Jeunesse, the Grand Chamber at paras 114 – 122 found exceptional circumstances vis-à-vis other factors such as the interests of children who were Dutch nationals (coupled with the fact that the authorities tolerated the applicant’s presence for many years).
Sales LJ also drew attention to the Strasbourg case law he set out at para 39 et seq of Nagre to make the point that the exceptional circumstances test requires more than relying on a spouse’s nationality. The decision letter, which addressed exceptional circumstances was in formulaic terms, was ambiguous and “left something to be desired” because it did not spell out that Agyarko’s case was a precarious family life case. But that made no difference because the letter did explain that Agyarko had overstayed since 2003 (a material factor, which occurred long before her involvement with Mr Benette) and the decision-maker had adequately dealt with the leave to remain and enter aspects of article 8.
In light of the stringency of the test of insurmountable obstacles, the Court of Appeal reasoned at para 50 that no decision-maker could be persuaded that there were insurmountable obstacles to Ikuga continuing her family life outside the UK. As Sales LJ said:
51. There was no arguable case that Mrs Ikuga could show that exceptional circumstances existed to support the conclusion that article 8 required that she should be granted leave to remain.
Over and above these points, because “no prospect whatever” of success existed, it was futile to remit Ikuga’s application for leave to remain to the decision-maker on the grounds of co-habitation and a subsisting relationship. Sales LJ explained that:
53. … Permission to apply for judicial review will be refused where judicial review will serve no sensible purpose, as here.
Like the SS (Congo) judgment, to which Sales LJ was a party, this judgment is also an emphatic statement about the finality of the Nagre decision. Imagine a scenario whereby Blake J was elevated in status and allowed to sit in the Court of Appeal, or even the Supreme Court, in MM (Lebanon): would he not amplify the points in his overturned judgment? In that regard, interesting comparative analysis is offered by the fact that Sales LJ, formerly a notorious “treasury devil”, has repeatedly had the pleasure of confirming his own judgment in Nagre. (It is worth flagging up that, in the course of his illustrious career as Philip Sales QC the learned judge had the distinction of sparking media outrage by charging the taxpayer £3.3 million over a six year period as First Treasury Counsel.)
The other, arguably “brighter”, side of the coin is that both Agyarko and SS (Congo) are quite clear that the conceivably hard-edged framework of rules set out in Appendix FM is not the final word on article 8. From what Sales LJ has said, the theoretical possibility of leave outside the rules being granted does still exist.
Yet, the message of these judgments is plain: Nagre, which seems to have created a whole new class of victim, was a misconceived and reckless challenge to the rules. (But for us spectators of the blood sport of immigration law, it was a poor instance for the court to enunciate a general rule of great importance.) In more ways than one, it is the final nail in the coffin of precariously formed family life. For Sales LJ, this reasoning is reflected in the fact that the decision was not appealed and indeed his Lordship’s rationale makes a telling point about taking weak cases to court.
Looking for a glimmer of hope against these unlikely odds, some would say that all is not lost yet because it still remains to be seen how far the article 8 window of opportunity will be opened by the impending decision of the Supreme Court in Bibi and Ali (UKSC 2013/0270 and 2013/0266, see here) and the vital case of MM (Lebanon) in relation to which permission to appeal was granted on 19 May 2015 – news handily made available on LinkedIn by our learned friend Aftab Rashid, counsel for two of the appellants, in advance of the official announcement by the Supreme Court! Despite big hopes of future clawback, the bad news, of course, is that Blake J himself said that the EU law aspects of Ali and Bibi’s cases were nothing short of hopeless.