Paragraph EX.2 of the immigration rules provides a starting point in defining ‘insurmountable obstacles’ as the ‘very significant difficulties which would be faced by the applicant or their partner…which could not be overcome, or would entail very serious hardship for the applicant or their partner’. However, the strictness of the test is mitigated by a realistic and practical approach which will be sensitive to the facts of each case.
In Agyarko, it was held that this test, though strict, was compatible with Article 8, and that, in addition, ‘the rules are not a summary of European court’s case law, but a statement of the Secretary of State’s policy’. In contrast to the more generous wording used by the European Court of Human Rights, such as ‘ un obstacle majeur ’ or a ‘ major impediment ’, the word ‘insurmountable’ necessarily indicates a very high threshold. This will be possible if they are able to show that they would face ‘insurmountable obstacles to family life continuing outside the UK with that partner’ as outlined in EX.1.(b) of the Immigration Rules.Īs indicated by the wording, this is a strict test. What happens when an applicant for leave to remain in the UK as the partner of a British or settled person does not meet all of the requirements of the immigration rules? They may still be able to acquire leave to remain on the basis of their right to private and family life under Article 8 of the European Convention on Human Rights.