Share it

The judgment in Agyarko and Ikuga is the last in a trio of cases heard last year which christie_awebaddressed ECHR, art 8 and the July 2012 changes to the Immigration Rules. Ms Agyarko and Ms Ikuga were both foreign nationals who had entered the UK on visitor’s visas and subsequently overstayed, following which they each began relationships with British citizens. Both women were refused leave to remain in the UK on the basis that they had not established ‘insurmountable obstacles’ to family life continuing abroad, and had not demonstrated that there were ‘exceptional circumstances’ to warrant a grant of leave to remain outside the rules.

Lord Reed, giving judgment for the court, dismissed the appeals, and in so doing, addressed a number of pertinent issues. First, he gave guidance on the correct approach to the application of art 8 to the removal of non-settled migrants (i.e. persons without a right of residence). In line with his earlier judgment in Hesham Ali (case comment here), Lord Reed rejected the Secretary of State’s submissions that in cases of non-settled migrants, the question is whether the state owed them a positive obligation to grant leave to remain, rather than whether there had been an interference with art 8 which could be justified. Lord Reed, reiterating his guidance in Hesham Ali, held that the distinction between positive and negative obligations is not of substantial importance, and that ultimately the question is whether a fair balance has been struck, which is determined by applying the structured approach to proportionality.

The second issue was the interpretation of ‘insurmountable obstacles’ in Appendix FM, para EX.1(b). Lord Reed considered the definition introduced in EX.2,“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”, to be consistent with the Strasbourg case law, noting that although Strasbourg has alternated between the phrases “insurmountable obstacles”, “major obstacles”, “major impediments”, or whether a family could “realistically” be expected to move, the test is a stringent one.

However, whilst Strasbourg treats “insurmountable obstacles” as a factor to be taken into account in assessing proportionality, it is a test to satisfy under the Immigration Rules, and those who cannot must show “exceptional circumstances” to be granted leave outside the rules. Lord Reed held that the Rules and Instructions fall within the UK’s margin of appreciation, stating that “Immigration control is an intensely political issue”, and that the Rules reflect the assessment by the Secretary of State, as responsible minister, of the relative weight of the competing factors when striking a fair balance under art 8. “Exceptional circumstances” are defined in the Instructions as “circumstances in which refusal would result in unjustifiably harsh consequences”, and this was found to be compatible with art 8.

Surprisingly, there was no discussion of previous domestic authority on the subject of insurmountable obstacles and art 8. Lord Kerr’s dissenting judgment in Hesham Ali referred at para 150 to insurmountable obstacles and how in the art 8 context, the “domestic courts have repeatedly emphasised that the test for whether a family can be expected to relocate abroad to continue their family life is whether relocation would be ‘reasonable’”, referring to Huang, EB (Kosovo), ZH (Tanzania) and the Court of Appeal case of VW (Uganda). However, the court in Agyarko made no reference to these cases in the discussion of insurmountable obstacles; they were neither departed from nor distinguished, and indeed Huang and EB (Kosovo) were upheld elsewhere in the judgment. Whilst one might therefore assume, in reliance on binding House of Lords authority, that the “exceptional circumstances” which must be shown to succeed outside the rules will exist where a family’s relocation would not be “reasonable”, it is hard to equate the test of “reasonableness” with “unjustifiably harsh consequences” without raising the threshold of what might be considered unreasonable.

The third issue concerned ‘precariousness’. Although found to be an “important consideration” when assessing proportionality, and a matter which affects the weight to be attached to family life, the court does not clearly explain the circumstances in which family life will be precarious. Reference is made to persons here “unlawfully” or “entitled to remain… only temporarily”. It is unclear, however, whether family life involving a person with limited leave to remain (rather than, for example, a visitor or an overstayer) would be considered precarious, and there is no assessment of whether the analysis might differ depending on whether the person has limited leave to remain as a student, worker or spouse, or if they are on a route to settlement.

Lord Reed’s analysis is also unclear as to precisely the effect of precariousness. Whilst he initially states that a person’s precarious or unlawful stay will affect the weight to be attached to family life, he somewhat undermines this by going on to say that the “significance” of a person’s precarious immigration status “depends on what the outcome of immigration control might otherwise be”; which suggests that precariousness does not, in fact, play all that significant a role in the proportionality exercise.

Previous House of Lords decisions (Chikwamba; EB (Kosovo)) are upheld, with Lord Reed explaining that the weight to be given to precarious family life will increase in cases where a spouse would qualify for leave to enter if they made an application from outside the UK, or where family life develops during a protracted delay in enforcing immigration control. Lord Reed adds a further category of persons to whom a “less stringent approach” to precariousness might be appropriate: people who “might be under a reasonable misapprehension as to their ability to maintain a family life in the UK”. What counts as a “reasonable misapprehension” is not developed further, but Lord Reed’s comments leave scope to argue that families who start off satisfying the Immigration Rules, but following a rule change are unable to do so, should be treated ‘less stringently’.

The fourth issue Lord Reed addressed was whether the “exceptional circumstances” test is appropriate when considering whether to grant leave to remain outside the Rules to a non-settled migrant with a precarious family life. The court confirmed that a proportionality test (and not an exceptionality test) must be applied, but, as in Hesham Ali, required “appropriate weight” to be given to the Secretary of State’s immigration policy that a person in breach of immigration law must show insurmountable obstacles, or exceptional circumstances (defined as “unjustifiably harsh consequences”), for the public interest in immigration control to be outweighed. Cases involving precarious family life were held to require “a very strong or compelling claim” to outweigh the public interest in immigration control.

The final question was whether Appendix FM is unlawful under EU law, or under the 1971 Act, s 1(1), insofar as it is based on the expectation that a British citizen with a non-national partner can relocate to the partner’s country of origin unless they can show insurmountable obstacles. The court briefly considered Zambrano, Dereci and subsequent cases, noting the requirement of complete dependence between the EU citizen and third country national, such that would result in the constructive expulsion of the EU citizen if the third country national were not permitted to remain. The court indicated that if such a situation were to arise in an individual case, it could be addressed under the Rules as an “insurmountable obstacle”, or under the Instructions as “exceptional circumstances”. The court gave short shrift to the argument that a British citizen’s rights under the 1971 Act, s 1(1) to live in the UK without let or hindrance entitled them to live in the UK with their partner, because the 1971 Act enabled the Secretary of State to refuse a British citizen’s partner leave to enter or remain.