Read the full judgment here.
By Ben Hawkin
These were appeals against decisions of the UT refusing permission for JR of decisions by the SSHD to refuse leave to remain to overstayers who had formed relationships with British citizens and subsequently made applications relying on Article 8 of the ECHR.
The Court held that:
(1) The phrase “insurmountable obstacles” as used in section EX.1 of Appendix FM to the Immigration Rules, was a significantly more demanding test than whether it would be reasonable to expect a couple to continue their family life outside the United Kingdom, and was intended to have the same stringent meaning as in the Strasbourg jurisprudence: see e.g. Rodrigues da Silva and Hoogkamer v Netherlands (2007) 44 EHRR 34, para 39 and Jeunesse v Netherlands (2007) 44 EHRR, para 117.
(2) However, it should be interpreted in a sensible and practical, rather than a purely literal way: see e.g. MF (Nigeria) v SSHD  EWCA Civ 1192, para 49.
(3) The “insurmountable obstacles” criterion in section EX.1 was a precondition, that needed to be satisfied before an A could be granted leave under the Rules. But in the context of a wider Article 8 assessment outside the Rules, it was a factor to be taken into account not an absolute requirement.
(4) Though as the As’ family life was established with knowledge that they had no right to be in the UK and was therefore precarious, it was only if the case was exceptional for some reason that there would be a violation of Article 8: see R (Nagre) v SSHD  EWHC 720 (Admin), paras 39-41 and SS (Congo) v SSHD  EWCA Civ 387, para 29.
(5) Even in a precarious family life case the “insurmountable obstacles” test was not an invariable precondition to a finding of violation of Article 8, as the facts of Jeunesse v Netherlands showed, which meant that there was a gap between section EX.1 and what Article 8 might require. However, the test was still a material factor.
(6) It was possible to envisage a Chikwamba v SSHD  UKHL 40 type case, in which Article 8 might require leave to remain be granted outside the Rules, even though there were no insurmountable obstacles to family life continuing overseas. But where it was precarious family life, there would need to be exceptional circumstances.
Representatives will see from the full judgment that the Court observed at §§ 13, 25, 35 and 40 that the evidence submitted with the original applications to the SSHD in these cases was either non-existent or weak. This underlines once again the importance of ensuring that such applications are supported by clear evidence that fully explains the factual circumstances and how the relevant legal criteria and tests are satisfied.