‘Insurmountable Obstacles’ and ‘Exceptional Circumstances’ Tests Approved by Supreme Court

“The ECtHR has variously examined the approach to removing non-settled migrants. Jeunesse raised the question whether the host state’s authorities owed a duty to allow an applicant permission to enable her to exercise her right to family life on its territory. Emphasis was not provided to whether the interference was justified under article 8(2). Rather, the analysis revolved around whether an obligation was imposed on the host country to permit a non-settled migrant a continued right of residence on its territory in order to respect private and family life under article 8(1). The executive argued that analysis is required regarding whether the UK is under a positive obligation to permit an applicant to remain on its territory, and not whether the refusal of the application is justifiable under article 8(2).”

United Kingdom Immigration Law Blog

Agyarko and Ikuga v SSHD [2017] UKSC 11 (22 February 2017)

“Insurmountable obstacles” and “exceptional circumstances” are every day expressions in immigration law but their real meaning has eluded the cleverest of judges. These two cases provided the Supreme Court the opportunity to shed much needed light on the meaning of these phrases in paragraph EX.1(b) of Appendix FM of the Immigration Rules and the Immigration Directorate Instructions where they respectively appear. Involving a mixture of important issues, this judgment allowed the Supreme Court to reiterate its own structured approach to proportionality recently espoused in Hesham Ali [2016] UKSC 60 (see here), as originally articulated in Huang[2007] UKHL 11. The intersecting themes involved the right approach to the application of article 8 to the removal of a non-settled migrant; the interpretation and legality of the terms “insurmountable obstacles” and “precariousness”; the lawfulness of Appendix FM under EU…

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