New Judgment: R (Agyarko) v SSHD; R (Ikuga) v SSHD  UKSC 11
22 Wednesday Feb 2017
On appeal from  EWCA Civ 440.
These appeals considered whether the requirement that an applicant who formed a relationship with a British citizen whilst in the UK unlawfully must demonstrate “insurmountable obstacles” to be granted leave to remain in the UK under the Immigration Rules is compliant with the ECHR, art 8. The Supreme Court unanimously dismissed the appeals. The Court held that the Secretary of State’s decision to refuse the illegal applicants leave to remain, despite their having British partners, was lawful. The Court did view the test of there being ‘insurmountable obstacles’ to a continuing relationship should the right to remain be refused to be a stringent one. Nonetheless, it held that the Immigration Rules are compatible with ECHR, art 8 in this respect, as this provision requires there to be a fair balance struck between competing public and individual interests involved, applying a proportionality test, and the policies adopted by the Secretary of State are within the margin of appreciation. In the same way, the balance involved in the question of whether there are ‘exceptional circumstances’ precluding refusal of the right to remain is within the Secretary of State’s remit, and thus there is no breach of art 8.
To watch the hearing, please visit: Supreme Court Website.