Article 8 and Precariousness: Appendix FM in Supreme Court

These days the Immigration Rules are full of riddles. Applying a gloss on article 8 of the ECHR, wide-ranging rubric under the existing rules incorporates high legal tests such as “insurmountable obstacles”, “exceptional circumstances”, “compelling circumstances” and “exceptionality”. Such phrases dictate the terms of article 8 in leave to remain and entry clearance matters. This year in April, the Supreme Court deliberated over whether such expressions comply with article 8. The court heard cases about the minimum financial requirements earlier in February and these judgments will provide much needed guidance in the field at a time when the UK is at war with itself over immigration. Albeit not illegal entrants, Margaret Agyarko (a Ghanaian) and Favour Ikuga (a Nigerian) are overstayers who rely on their “precarious” relationships with their British partners to remain in the UK but had their applications refused because they fell foul of the terms of the rules – namely section EX.1(b) of Appendix FM – as they failed to demonstrate insurmountable obstacles to family life continuing somewhere else. They also failed to show that exceptional circumstances warranting the grant of leave outside the rules – under the executive’s residual discretion – existed and rendered the refusal of leave to disproportionately interfere with article 8.

The first thing that Lady Hale said was that the parties needed to be aware that the same constitution of the court had heard the earlier appeals in MM (Lebanon) and related cases and the justices were “pretty familiar” with everything. Although the finality of the rules is creating new classes of victims, the court was slightly resistant to hearing points about the post-Immigration Act 2014 appellate regime where proceedings relying on Wednesbury grounds of challenge will inevitably mount because of the deletion of the “not in accordance with the law” ground of appeal. As argued by Mr Saini QC for the appellants, other pitfalls in the existing environment are that it has been authoritatively held – in cases such as Odelola [2009] UKHL 25 and Alvi [2012] UKSC for example – that the rules “create legal rights” but that is no longer true.

In the Court of Appeal, Sales LJ held (Longmore and Gloster concurring) 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. His Lordship’s approach was steered by his own decision in Nagre [2013] EWHC 720 (Admin) which he stressed contained “an accurate statement of the law”. In keeping with the rationale in Jeunesse v Netherlands (2015) 60 EHRR 17, he held that where a person unlawfully overstays and forms a relationship or gets married and wishes to remain in the UK, the test of insurmountable obstacles is “stringent”.

The Court of Appeal also 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. Despite so finding, the court did give some practical advice to future applicants. Sales LJ explained at para 25 that neither Margaret Agyarko nor her husband provided witness statements to set out what obstacles might exist to them decamping from the UK? He said that assertions made in her application about separation from her husband were “very weak” and no other evidence was supplied as regards the existence of insurmountable obstacles to the continuation of family life overseas. It was clear to his Lordship that the mere fact that her husband was British and lived and worked in the UK all his life was incapable of constituting an insurmountable obstacle to relocating to Ghana and continuing existing family life there.

On the position of the expression in the rules, Sales LJ said 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 Agyarko and her husband continuing outside the UK was not irrational or unlawful in any way.

As regards Chikwamba [2008] 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.

The court embraced the opportunity to shine a light on what it 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, 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 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 her husband’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. 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 her husband) 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. The supremacy of the rules was never in doubt and the court held in unambiguous terms:

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.

Just to put things into a little bit of historical perspective, when the “crystal clear” decision in VW (Uganda) [2009] EWCA Civ 5 – where Chikwamba tipped the scales in the appellant’s direction – was handed down in January 2009, people rejoiced chanting “insurmountable obstacles finally bite the dust”. Should the Supreme Court find in the appellants’ favour, the presently wilted prospects of people remaining in the UK by relying on their family life will be resurrected and the same type of celebration will yet again be witnessed on the blogosphere.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appendix FM, Article 8, Blogging, ECHR, Immigration Act 2014, Immigration Rules, Proportionality, Spouses, UKSC and tagged , , , , , . Bookmark the permalink.

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