Tag: Insurmountable Obstacles

Insurmountable Obstacles Proved in a Delicate Human Rights Appeal Case

Oksana Demyanchuk acted successfully in a complex human rights case involving insurmountable obstacles to family life outside the United Kingdom.

The client is a Ukrainian national who initially applied for Leave to Remain in the UK on the basis of her partner and private life. The application was subsequently refused by the Home Office and appealed to the Immigration Tribunal.

During the appeal process, the client (Appellant) had to show that there were insurmountable obstacles if she and her partner had to continue their family life outside the UK as well as a breach of her and her partner’s human rights.

Insurmountable Obstacles

As the Appellant had a successful appeal and was consequently granted leave to remain in the UK, her circumstances help to define what insurmountable obstacles would amount to.

The immigration Judge explained that insurmountable obstacles mean that the Appellant and her partner would be faced with very significant difficulties if they had to continue their family life outside of the UK, which could not be overcome or would entail very serious hardship for either the Appellant or her partner.

Her partner entered the UK lawfully as a student, lived in the UK for a period of over 19 years and has indefinite leave to remain. He held consistent employment throughout this time and bought a property where he lives with the Appellant and their children. On top of this, her partner recently underwent serious heart surgery, and was still recovering. The Appellant’s main responsibility was caring for her partner. Additionally, the Appellant plays a strong role in the upbringing of her grandchildren. It is therefore accepted that the Appellant has a close family unit within the UK.

Moreover, it is noted that the Appellant does not hold any property in Ukraine, nor does she have any immediate family, friends or neighbours in Ukraine. It can be seen that the Appellant has taken on a strong role as a carer within the family. In the case of Beoku-Betts [2008] UKHL 39, it was stated that when deciding an appeal on human rights grounds, it is important to take into consideration the effect that the decision would have on other family members with respect to their family life. In regard to this, strong considerations were made on the best interests of the children involved, specifically the Appellant’s grandchildren.

Additionally, the Appellant proved that she is able to speak and communicate in English. The Appellant does not and has never claimed state benefits. Furthermore, by allowing her to stay in the UK to take care of her partner, her partner would not have to seek help from social and health services thus helping to reduce the strain on public services. It should be noted that she is the only member of her family with an illegal status in the UK, the remainder of her family unit holds the legal right to remain and reside in the UK.

For this reason, it was acknowledged that our client and the family members would face extremely serious hardships if she was forced to return to Ukraine. Our client would have no employment, home, friends and family and thus have significant obstacles in reintegration back in her country of origin. Moreover, our client’s partner and the entire family unit would suffer without the care of the Appellant.

The appeal was allowed by the First-tier Tribunal under the Immigration Rules and the European Convention on Human Rights (1950)

This successful appeal ensures that our client will not be torn away from her partner and will now be able to stay in the UK with her partner.

 

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Insurmountable obstacles rule featured in Appendix FM of Immigration Rules in cases concerning partner relationships

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 [2014] 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.