Our client, a Brazilian national, came to the UK on a student visa. Although her applications for leave to remain were unsuccessful, she remained in the UK. She met her British husband several years later and after he was diagnosed with Lung Cancer. After that our client started to provide him with required daily care. Our client applied for leave to remain under the 10-year partner route. However, her application was refused on the basis that the ‘insurmountable obstacles’ requirement was not met.
What is ‘insurmountable obstacles’?
In accordance with para EX.2. Appendix FM of the Immigration Rules, insurmountable obstacles are defined as ‘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’.
Sterling Law successfully appealed the Home Office refusal. The Judge considered all the evidence that Sterling Law put forward. As a result, the court decision favoured our client.
There are genuine insurmountable obstacles in this appeal:
The Sponsor has lung cancer
He is still unwell since his operation and chemotherapy,
He needs very regular checks and follow-up appointments which could not take place in Brazil.
Neither the spouse nor the appellant has connections in Brazil AND
…they have no means of making an income
BECAUSE the appellant has been living in the UK for around 17 years.
It would be not fair to remove our client from the UK. The harm to her private life would not be proportional.
Although our client overstayed her last granted leave for several years, she:
has no criminal convictions,
speaks very good English,
has integrated into life in the UK
is not dependent on the public purse.
Bearing in mind these facts and the amount of care our client provides to her British husband, the Judge found that
‘there is more than mere hardship in this appeal’,
and then went on to conclude that ‘I do not find it reasonable to expect the appellant to be removed from the UK’.
Thus, the appeal was allowed and our client was subsequently granted leave to remain in the UK by the Home Office.
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