The Supreme Court heard the appeal in R (Agyarko) v Secretary of State for the Home Department on 6-7 April 2016. It concerned the correct test to be applied where an individual unlawfully present in the UK asserts that they should be permitted to remain in the UK as a result of their relationship with a British citizen. The appeal considers the correct approach under the Immigration Rules and ECHR, art 8.


The appellants in this appeal entered the United Kingdom lawfully, but overstayed their visas. They subsequently entered into relationships with British citizens, and applied for leave to remain on the basis that these relationships were protected by their ECHR, art 8 rights. Their applications were refused on the grounds that their situations did not satisfy the Immigration Rules, Appendix FM, which deals with leave for family members. The Secretary of State did not believe that compliance with ECHR, art 8 required their circumstances to be assessed outside the scope of the Immigration Rules.

As the relationships were formed at a time when the appellants were unlawfully present in the UK, they were to be treated as precarious. Leave would only be granted to precarious relationships under Appendix FM if ‘insurmountable circumstances’ to family life continuing elsewhere were demonstrated. The Secretary of State had a residual discretion to grant leave outside the scope of the Immigration Rules, but only in ‘exceptional circumstances’ where a failure to give leave would disproportionately interfere with ECHR, art 8.

Proceedings in the Upper Tribunal and Court of Appeal

The appellants challenged the decision of the Secretary of State before the Upper Tribunal (Immigration and Asylum Chamber), where permission to seek judicial review was refused. They received permission to appeal to the Court of Appeal.

The Court of Appeal considered the phrase ‘insurmountable obstacles’, and concluded that the relevant paragraph in the Immigration Rules imposed a higher hurdle than merely requiring a demonstration that it would not be reasonable to expect a couple to continue their family life outside the United Kingdom. It noted that this criterion was actually a precondition to leave being granted under the Rules. However, in the case of ECHR, art 8 claims, it was a factor to be considered, rather than an absolute requirement.

It concluded that the Secretary of State had not acted unlawfully or irrationally in finding that the appellants did not face any insurmountable obstacles to the continuing of family life outside the UK. It also concluded that there were no exceptional circumstances which would allow an ECHR, art 8 claim for leave to remain to succeed.

The appeal in the Supreme Court

The Supreme Court will consider whether the ‘insurmountable obstacle’ requirement in the Immigration Rules and the ‘exceptional circumstances’ test for consideration outside the scope of the Immigration Rules comply with ECHR, art 8. It will also assess whether the tests of “exceptionality”, “exceptional circumstances” or “compelling circumstances” where applicants for leave to enter or remain do not satisfy the Immigration Rules is contrary to ECHR, art 8.