The application and interpretation of the “insurmountable obstacles” rule aims for a balance between the Article 8 rights and the legitimate aims of immigration control. The Rules therefore account for the cases where people apply for a leave to remain as partners and the following applies:
“(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.”
“Insurmountable obstacles” are defined as very serious 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. Therefore, the focus is on the difficulties to be faced by the couple in continuing their family life outside the UK.
Although this entails a high test, it does not mean literally insurmountable obstacles. In practice, interpretation of this rule is practical and realistic. In establishing insurmountable obstacles, the following factors may be taken into consideration, as per Jeunesse v Netherlands  ECHR 1036:
- Whether family life would be effectively ruptured;
- Whether there are any ties in the Contracting State (and their extent);
- Factors of immigration control (eg, history of immigration law breaches);
- Public order
There are a few other considerations that can influence the application of insurmountable obstacles to a particular case.
- Firstly, it is important if the applicant’s stay in the UK is unlawful or precarious. This affects the weight attached to the public interest in removing the person from the UK. Accordingly, the weight of public interest is determined by the outcome of immigration control over the applicant. This can be illustrated by two contrasting scenarios. If the applicant’s stay in the UK was unlawful and they would be deported as a foreign criminal, the public interest in their removal is elevated. By contrast, if it is certain that the applicant would be granted leave to enter the UK after being removed, the interest in such removal is diminished, as illustrated by the Chikwamba rule.
- Secondly, a less stringent approach might be appropriate if the applicant and their partner were under a reasonable misapprehension of their ability to maintain a family life in the UK. In practice, this would apply, for example, in cases when someone is brought to the UK as a child and not informed of their immigration status.
Nevertheless, even though it is established that the test of insurmountable obstacles is high, the Agyarko case also notes that if the test is not met, but the refusal of the application would result in unjustifiably harsh consequences, the refusal will be disproportionate and a leave granted under “exceptional circumstances”. Therefore, despite a high threshold of the test, there are many factors that affect the decision of a court or tribunal when each individual case is being decided.