These appeals concerned whether the Secretary of State lawfully refused leave to remain to two women who had formed relationships with British citizens while living unlawfully in the United Kingdom. The Supreme Court held that the Immigration Rules’ requirement of “insurmountable obstacles” to family life continuing abroad, and guidance that leave outside the Rules requires “exceptional circumstances”, are compatible with article 8 of the European Convention on Human Rights. Neither appellant had shown such obstacles or circumstances, and both appeals were dismissed.
Ms Agyarko, a Ghanaian national, entered the United Kingdom as a visitor in 2003 and remained after her leave expired. She later formed a relationship with Mr Benette, a British citizen in full-time employment who had lived in the United Kingdom for almost all his life. They married by proxy under Ghanaian customary law in 2012 and lived together, but had no children together. In 2012 she applied for leave to remain, accepting that she did not meet the Immigration Rules and relying on article 8. The Secretary of State refused the application in 2013. She accepted that the relationship was genuine, but found no evidence of insurmountable obstacles to continuing it in Ghana and no exceptional circumstances justifying leave outside the Rules.
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Ms Ikuga, a Nigerian national, entered as a visitor in 2008 and overstayed. She applied for leave to remain on the basis of a relationship with Mr Ijiekhuamhen, a British citizen, and referred to medical treatment and fertility difficulties. Supporting material included older hospital correspondence and a household bill. The Secretary of State refused the application, concluding that she had not shown that they lived at the same address and therefore had no “partner” as defined in Appendix FM, and that her medical claims were not compelling enough for leave outside the Rules. The Upper Tribunal accepted that cohabitation had not been properly considered, but held that the application was bound to fail in any event. The Court of Appeal dismissed both women’s appeals against the refusal of permission for judicial review.
The Rules and the Instructions
Appendix FM sets out requirements for leave to remain as a partner. Where the applicant is in the United Kingdom in breach of immigration laws, paragraph EX.1(b) requires a genuine and subsisting relationship with a British citizen or other qualifying partner and “insurmountable obstacles” to family life with that partner continuing outside the United Kingdom. At the time of these decisions the Rules did not define that phrase; a definition was added in 2014. The Secretary of State’s Instructions said that failure to meet the Rules would normally mean failure under article 8, but that leave could be granted outside the Rules in exceptional circumstances. “Exceptional” was defined not as unusual or unique, but as circumstances in which refusal would result in unjustifiably harsh consequences such that it would not be proportionate.
Lord Reed, with whom Lady Hale, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hughes and Lord Hodge agreed, explained that the Rules are statements of practice laid before Parliament. They reflect the Secretary of State’s policy on how article 8 should be balanced against immigration control, rather than a summary of Strasbourg case law. Decisions taken in accordance with them are intended to be compatible with article 8 except in exceptional cases. The courts must give considerable weight to that policy, while still examining the circumstances of the individual case.
Insurmountable obstacles, precarious family life and exceptional circumstances
Drawing on the European Court of Human Rights’ decision in Jeunesse v The Netherlands and earlier cases, Lord Reed treated “insurmountable obstacles” as a stringent but practical test. It covers very significant difficulties which could not be overcome or would entail very serious hardship, not only obstacles that make life together literally impossible. He interpreted the phrase in the Rules, even before the 2014 definition, as having that meaning. If the test is met, leave is granted under the Rules. If it is not, leave may still be granted outside the Rules where refusal would produce unjustifiably harsh consequences and would not be proportionate.
Where family life is created when the people involved know that one person’s immigration status makes its continuation in the host state precarious, that family life generally carries less weight. Precariousness is not a preliminary hurdle. It affects the balance, and a very strong or compelling claim is normally required to outweigh the public interest in immigration control. Its significance can vary: there may be little public interest in removal if entry clearance would certainly be granted, as illustrated by Chikwamba, and delay in enforcement may also affect the balance. The Instructions’ reference to exceptional circumstances does not impose a search for a unique feature. It requires a proportionality assessment, consistent with the approach in Huang and with the European case law on precarious family life.
On that basis, Lord Reed held that the Rules and Instructions are compatible with article 8. Treating insurmountable obstacles as a requirement under the Rules, while allowing leave outside the Rules for unjustifiably harsh consequences, does not make the scheme incompatible with the Convention. Compatibility of an individual decision remains a separate question.
European Union law and British citizenship
The appellants argued that the scheme unlawfully pressured a British citizen, and therefore an EU citizen, to leave the European Union, contrary to article 20 TFEU and Ruiz Zambrano. Lord Reed rejected that argument. Article 20 protects the genuine enjoyment of the substance of EU citizenship rights in very specific situations, typically where refusal of residence to a third-country national would force a dependent EU-citizen child to leave the Union. It does not confer an autonomous right on a third-country national, and a wish to keep a family together is not enough. The decisions in Dereci and later cases showed that a partner or other family member is not forced to leave the Union merely because residence is refused to the third-country national. Any rare case in which a British partner would in practice be forced to leave the EU could be addressed through insurmountable obstacles or exceptional circumstances. Section 1(1) of the Immigration Act 1971, giving a British citizen a right to live in the United Kingdom, does not require the non-national partner to be granted leave.
The decisions on the facts
Ms Agyarko’s was a case of precarious family life. No evidence before the Secretary of State could reasonably have supported insurmountable obstacles to life in Ghana, and nothing suggested unjustifiably harsh consequences. Her claim was not very strong or compelling. She had not put forward a Chikwamba argument, and the financial information indicated that an out-of-country application would not meet the minimum income requirement. Although the decision letter was brief and used standard wording, it addressed the main points relied on and adequately explained the refusal.
In Ms Ikuga’s case the Secretary of State had wrongly found that there was no evidence of cohabitation. Even so, the Upper Tribunal and Court of Appeal were entitled to refuse relief. On the material she had provided, her partner’s employment in the United Kingdom and her wish to continue fertility treatment could not amount to insurmountable obstacles, and she had not shown exceptional circumstances as defined in the Instructions. Reconsideration would inevitably have produced the same refusal.
Verdict: The Court unanimously dismissed both appeals. The Rules and guidance applied in these cases were compatible with article 8. The refusal in Ms Agyarko’s case was lawful. Although the Home Secretary had misunderstood the evidence about Ms Ikuga’s cohabitation, reconsideration would inevitably have produced the same result.
Source: R (Agyarko) and R (Ikuga) v Secretary of State for the Home Department [2017] UKSC 11
