“Insurmountable obstacles” and “exceptional circumstances” are every day expressions in immigration law but their real meaning has eluded the cleverest of judges. These two cases provided the Supreme Court the opportunity to shed much needed light on the meaning of these phrases in paragraph EX.1(b) of Appendix FM of the Immigration Rules and the Immigration Directorate Instructions where they respectively appear. Involving a mixture of important issues, this judgment allowed the Supreme Court to reiterate its own structured approach to proportionality recently espoused in Hesham Ali  UKSC 60 (see here), as originally articulated in Huang  UKHL 11. The intersecting themes involved the right approach to the application of article 8 to the removal of a non-settled migrant; the interpretation and legality of the terms “insurmountable obstacles” and “precariousness”; the lawfulness of Appendix FM under EU law or the Immigration Act 1971 in linkage to the expectation of relocation abroad; and the lawfulness of the decisions made on the facts of Agyarko and Ikuga’s cases. Applying Jeunesse v The Netherlands (2015) 60 EHRR 17, precariously formed family life must be interpreted to mean that it will be likely only in exceptional circumstances that the non-national family member’s removal results in a breach of article 8 of the ECHR.
Strasbourg tends to interpret phrases such as “insurmountable obstacles” practically and realistically. Terms such as “un obstacle majeur” and “major impediments” are also in usage and the test of insurmountable obstacles is a stringent one. In this important judgment given by Lord Reed, the Supreme Court unanimously dismissed both Agyarko and Ikuga’s appeals. The outcome confirms that the justices have given a clean bill of health to the rules because their text is consonant with the ECtHR’s jurisprudence. Moreover, the principle of EU law under Zambrano (Case C-34/09) and any associated situations of dependency were outside the scope of the exercise because an EU citizen was not being forced to live outside the EU. The government was even more triumphant in these appeals than it was in the judgment in MM (Lebanon) & Ors  UKSC 10.
Mrs Agyarko is a Ghanaian national who married Mr Benette, a naturalised British Citizen of Liberian origin, by proxy in August 2012 in accordance with Ghanaian law. They do not have children but she has three children, two siblings and a parent (mother) in Ghana. She entered the UK in 2003, then aged 40, and overstayed. An application for leave to remain was made in September 2012.
Mrs Ikuga entered the UK in March 2008, then aged 33, and overstayed. In 2011 she entered into a relationship with Mr Ijiekhuamhen, a British citizen. They do not have children. She is dependent on him. Relying on article 8 she argued that her family life could not be maintained and enjoyed in Nigeria because she was trying to conceive. She had received private fertility treatment in the UK and suffered from other health complications. 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 precarious circumstances. The applications were refused with reference to Appendix FM and the private life rules. Ikuga’s application was also refused because she had provided no evidence to show that she had been living at the same address as her partner. Equally, her claimed health problems were not deemed to be life threatening, or compelling and compassionate enough to warrant granting leave outside the rules. Neither refusal generated a right of appeal. Judicial review of the decisions in the Upper Tribunal resulted in failure.
The Court of Appeal
Sales LJ, with whom Longmore and Gloster LJJ agreed, dismissed the appeals by holding that in light of in Jeunesse the test of insurmountable obstacles in Appendix FM is “stringent”:  EWCA Civ 440. On the other hand, his Lordship thought that the rules and the case-law obviously intend for it to be interpreted sensibly and practically rather than in a purely literal manner.
Explaining the expression’s position in the context of the rules, his Lordship found that it was not simply a factor to be taken into account because it sets a precondition that needs to be satisfied before an applicant could claim an entitlement to be granted leave to remain.
Agyarko’s overall situation showed a lack of symmetry with Chikwamba  UKHL 40. Her case was far from a Chikwamba type case. In fact, neither Agyarko nor Ikuga had asked for leave to remain to be granted on the basis of Chikwamba. Both women developed precarious family lives with the full knowledge that their immigration status was unclear. Neither of them had children and the mere fact that their partners were British and had their lives in the UK could not suffice as insurmountable obstacles to family life continuing elsewhere. Nor had either of them provided any evidence to prove that an out of country application would succeed and therefore no foothold was available to argue that leave to enter would be granted.
The Supreme Court
It was held that the decisions were lawful on the facts of these cases and that the rules and instructions are compatible with article 8. As explained in MM (Lebanon) (see here), in article 8 cases the key principle concerns striking a fair balance between the competing public and individual interests involved in light of a proportionality test.
(i) Correct Approach
The ECtHR has variously examined the approach to removing non-settled migrants. Jeunesse raised the question whether the host state’s authorities owed a duty to allow an applicant permission to enable her to exercise her right to family life on its territory. Emphasis was not provided to whether the interference was justified under article 8(2). Rather, the analysis revolved around whether an obligation was imposed on the host country to permit a non-settled migrant a continued right of residence on its territory in order to respect private and family life under article 8(1). The executive argued that analysis is required regarding whether the UK is under a positive obligation to permit an applicant to remain on its territory, and not whether the refusal of the application is justifiable under article 8(2).
Lord Reed drew on his own analysis in Hesham Ali and explained that the boundary between evaluating cases in terms of positive and negative obligations is unlikely to be of substantial importance in the present context. It was unnecessary to dwell on the point. Following Huang domestic law focused on applying the structured approach to proportionality. His Lordship said that irrespective of the difference between positive and negative obligations invoked for the best analysis of cases, the central question for the ECtHR is ultimately whether a fair balance has been struck.
(ii) Insurmountable Obstacles
The adoption of official policies detailing the weight to be attached to the rival considerations in striking a fair balance lies within the margin of appreciation available to an ECHR contracting state. This includes attaching less weight to unlawfully and precariously formed family life balanced against the factors leaning in favour of removal; in comparison to family life developed by someone lawfully present in the UK.
A definition of “insurmountable obstacles” was introduced into the rules with effect from 28 July 2014, when paragraph EX.2 was inserted into Appendix FM. “Very significant difficulties” – which could not be overcome or would entail very serious hardship – would need to stop the couple continuing their family life together elsewhere.
Arguably, the rules treated “insurmountable obstacles” as a test applicable to those in the UK against the law, whereas the ECtHR considers no more than a relevant factor in relation to non-settled migrants. Lord Reed said that the rules do not present a summary of the ECtHR’s case-law. Instead they are a statement of executive policy, which is tempered in its scope as it concedes that leave may be granted outside the rules. In cases where the applicant/partner would face very significant difficulties continuing their family life together outside the UK, which could not be overcome or would entail very serious hardship in the continuation of family life together outside the UK, the test is met and leave will be granted under the rules because of “insurmountable obstacles”.
In circumstances the test is unmet but refusal would result in unjustifiably harsh consequences and would be disproportionate, then leave will be granted outside the rules because of “exceptional circumstances”. Where neither feature was discernible, it was hard to see why refusing leave would breach article 8. Sensibility and practicality informed the stringent test devised by Strasbourg, which does not focus solely to obstacles that make it literally impossible for the family to live together in the applicant’s country of origin. Therefore, the rules and instructions coincided with article 8 rather than being incompatible with it. This does not mean that the rules cover every claim under article 8 and compatibility with it was the domain of the independent court or tribunal in the light of the particular circumstances of each case.
In cases where the couple in question had been aware that the immigration status of the foreign partner was such that the persistence of that family life in the host state would be precarious from the outset, it is likely only in exceptional circumstances that the removal of the foreign family member will result in a violation of article 8. The instructions guide officials by advising them to attach more weight to lawfully formed family life in comparison to unlawfully developed family life. The approach was at one with the ECtHR’s case-law, including the Jeunesse judgment, because the instructions do not place precariousness as a preliminary hurdle to be overcome. Instead, family life established with full knowledge of unlawful status impacts the weight to be ascribed to it in the balancing exercise.
Lord Reed stressed that the public interest in the automatic deportation of foreign criminals was at the top end of the spectrum whereas the removal of someone merely present without leave to remain in the UK was a much milder matter in which there might be no public interest in removal because of a Chikwamba type situation, i.e. if made outside the UK an application for leave to enter would otherwise be certain to succeed. Notably, the public interest in removal of an overstayer is liable to diminish, and the weight to be given to precariously established family life is liable to increase, in cases where protracted delay is evidenced in the enforcement of immigration control. Both EB (Kosovo)  UKHL 41 and Jeunesse confirm the accuracy of that approach.
(iv) Exceptional Circumstances
It is settled law that the ECHR does not intend to circumvent the sovereign right of contracting states to protect their borders and to control the entry and residence of non-nationals on their soil. In Jeunesse itself, the Dutch authorities’ longstanding failure to remove the applicant allowed her to lay down deep roots in the Netherlands and the ECtHR decided that her circumstances were exceptional. A fair balance had not been struck and significant doubt loomed over the proposition that general immigration considerations could be regarded as sufficient justification for refusing her residence in the Netherlands.
In MF (Nigeria)  EWCA Civ 1192, Lord Dyson MR interpreted the exceptional circumstances question as one that entails a test of proportionality rather than a test of exceptionality. Searching for a unique or unusual feature was unnecessary. In Hesham Ali, Lord Reed approved of the Court of Appeal’s application of the approach to the deportation of foreign criminals. Courts and tribunals are obliged to give due weight to the executive’s policy that the public interest in immigration control is capable of being outweighed only if insurmountable obstacles or exceptional circumstances exist as regards an unlawfully present person’s application for leave to remain. According to Lord Reed, only genuine cases can succeed and:
57. … The critical issue will generally be whether, giving due weight to the strength of the public interest in the removal of the person in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control.
The instructions expressly state that exceptional does not mean unusual or unique, but means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would be disproportionate. The Supreme Court understood this to reflect a test of proportionality that coincides with the references to exceptional circumstances in the Strasbourg authorities and is therefore compatible with article 8.
The appellants contended that Huang left no scope for the use of an exceptional circumstances criterion. Huang was decided under the old system where the rules made no effort to address article 8 issues. However, in any event, the present rules do not impose a test of exceptionality – disapproved by Lord Bingham in Huang – and it is not necessary for a case to demonstrate some highly unusual feature in addition to the application of the proportionality test. Razgar  UKHL 27 intimated at para 20 that successful standalone article 8 claims would be “a very small minority” but the observation did not amount to a legal test.
The executive had defined the word “exceptional” in the context of unjustifiably harsh consequences and proportionality. Since the instructions provided that leave can be granted outside the rules where exceptional circumstances exist, the overall conclusion was article 8 had not been breached. This reasoning was bolstered by the text of the instructions that “exceptional” does not mean “unusual” or “unique”. The application of the proportionality test made the overall process compatible with article 8.
(v) EU Law Analysis
The court rejected the argument that EU law precluded the introduction of rules and instructions founded on the insurmountable obstacles or exceptional circumstances criteria. Moreover, refusing leave in these cases did not breach EU law and Lord Reed did not find the court to be in Zambrano territory.
Article 20 TFEU undisputedly conferred the status of EU citizenship, and all the associated benefits, on Mr Benette and Mr Ijiekhuamhen because of their British citizenship. However, no autonomous rights were conferred on Agyarko and Ikuga. As third-country nationals they derived their rights of residence from their EU citizen partners. The derivative rights in question are connected to a potential interference with the EU citizen’s right to freedom of movement. Recently in the case of CS (Morocco) (Case C-304/14, see here), the CJEU said at para 29 that in “very specific situations” EU law would grant a right of residence to a third-country national family member if refusal would force the EU citizen to leave EU territory and result in denying him the genuine enjoyment of the substance of the rights conferred by EU citizenship.
It was clear to Lord Reed that cases such as Zambrano, Alokpa and Moudoulou (Case C-86/12) and CS (Morocco) concerned instances where EU citizen minors were completely dependent on their third-country national parents and would consequently be forced to leave the EU altogether in the event their parents were not granted a right of residence. Such situations were distinguishable from circumstances where the specified degree of absolute dependence between the EU citizen and the third-country national was absent. Indeed, an alternative line of authority exists and a series of cases showed otherwise. In Dereci (Case C-256/11), the CJEU held that the Zambrano principle could not be expanded to include economic reasons and family unity. Arguments based on article 20 TFEU were also rejected in Iida (Case C-40/11) and Ymeraga (Case C-87/12).
If anything, Lord Reed was of the view that the drafting of the rules and instructions entailing the expressions insurmountable obstacles and exceptional circumstances was sufficiently capacious enough to accommodate cases where refusing a third-country national’s application for leave to remain would compel the British partner to leave the EU in breach of article 20 TFEU. His Lordship found that:
67. … Typically, however, as in the present cases, the British citizen would not be forced to leave the EU, any more than in the case of Dereci, and the third-country national would not, therefore, derive any rights from article 20.
An argument based on the right under section 1(1) of the Immigration Act 1971 was also rejected because of imprecision. The court did not read that provision as meaning that a British citizen’s unhindered right of residence in the UK was wide enough to include a non-national partner who had been lawfully be refused leave to enter or remain. Put simply, the right was “important” but did not permit British citizens to “insist” that their partners, who had been refused leave, should be allowed to remain with them in the UK.
(vi) Disposal of Individual Cases
Having rejected the challenges on all grounds, Lord Reed held that the decisions made in both cases were lawful. Agyarko’s claim was not very strong or compelling. It was outside the scope of Chikwamba.
The decision-maker was wrong to assert that Ikuga failed to provide evidence of living at the same address as her partner. The decision should have been quashed. The Supreme Court’s jurisdiction to quash is discretionary and Lord Reed refused to quash the decision because he was convinced that if re-taken the same decision would inevitably be made. The Upper Tribunal and Court of Appeal had also refused permission for judicial review along similar lines. Ikuga’s fertility treatment and her partner’s full-time employment in the UK were incapable of meeting the exacting test of insurmountable obstacles and the same was true of her claim outside the rules based on exceptional circumstances.
(vii) Template Decisions
Since the home office processes a very large number of applications, Lord Reed found that its use of standardised reasons is an acceptable “characteristic of modern decision-making practices in fields of public administration” because it streamlines internal auditing and management processes. Even though the mechanics of template decision-making and the production of decision letters were not the subject of challenge in these appeals, his Lordship did not find the use of standard phrases in decisions to be legally objectionable as long as adequate reasoning is provided.
In a long string of recent immigration cases, these two appeals added to the Supreme Court’s rapidly expanding archive of factually weak cases connected to testing and important new points of law which paradoxically tend to get settled in the government’s favour. The problem for both appellants seems to have been that they did not specify to the decision-maker exactly why they were unable to return to Ghana and Nigeria. Ambiguity did not help them. Ultimately, they became its victims. Putting their case with greater clarity and diligence at the outset may well have produced different results for them in the courts.