What Counts as Insurmountable Obstacles to Family Life?
Since the United Kingdom is a signatory to the European Convention of Human Rights and Fundamental Freedoms (ECHR) 1952 as incorporated into the Human Rights Act 1998, British laws should reflect the rights which the Convention aims to protect. Article 8 of the ECHR dictates that everyone should have the ‘right to respect for private and family life. This means that even if your partner is a foreign national, you should be able to live with them and enjoy family life together; this is your basic human right, but it is a qualified right, and each member state will give it that margin of appreciation having regard to matters such as proportionately and the need to maintain a proper system of immigration control.
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Also read: What Is The Private Life Visa?
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So How Does UK Legislation Accommodate Article 8 of The ECHR?
Appendix FM outlines the Home Office’s guidelines for immigration. The general method for bringing a partner to live in the UK would be through a spouse Visa and eventually applying for indefinite leave to remain. In order for your immigration application to be successful, you would have to satisfy criteria based on suitability, finances, accommodation and English language skills. By imposing these requirements, it is safe to say that not ‘everyone’ will be eligible, and some people would still end up deprived of their Article 8 right to family life. So how does UK legislation ensure that everyone has the right to family life, and what options do you have if your applications are unsuccessful due to Visa or indefinite leave requirements?
The answer lies in EX.1.(b) and EX.(2) of Appendix FM, which states that in the light of ‘insurmountable obstacles to family life, certain immigration requirements can be waived by the courts.
How Does Article Ex.1.(b) Work?
In practical terms, this means that if you cannot bring your partner to the UK due to Visa requirements, and you yourself are unable to join them in their home nation due to ‘insurmountable obstacles, then the courts are able to waive certain requirements in order to satisfy your right to family life. The success of such an argument will, of course, hinge on you being able to demonstrate that the obstacles are indeed insurmountable.
It is worth noting that if you or your partner hold multiple nationalities, then you will have to prove that you would face ‘insurmountable obstacles’ in all of the relevant countries.
What Might The Courts Accept as Insurmountable Obstacles?
EX.2. Describes ‘insurmountable obstacles’ as ‘very significant difficulties…which could not be overcome or would entail serious hardship for the applicant or their partner’ should they try to continue their family life outside the UK.
As you can see, the definition is left open on purpose, and judges are able to determine each case on its merit. But we are able to use previous cases to determine which reasons judges will validate as ‘insurmountable obstacles.
The following situations are likely to be accepted as ‘insurmountable obstacles:
- The inability to enter or live in the partner’s home nation. In this situation, the onus will be on you to prove that authorities from your partner’s home nation will not allow you to enter or take up residence in the country. Simply preferring not to live in that country is not an acceptable reason.
- Cultural/legal barriers. A good example would be same-sex partnerships in countries which maintain homophonic laws and regularly discriminate against or prosecute members of the LGBTQ+ community. In these scenarios, the level of discrimination would be heavy enough to pose significant difficulties and hardship by stripping a couple of their rights and freedom.
- Compromised health of either party. If either party suffers from a form of mental or physical disability, then forcing them to relocate to a country with poor medical facilities will clearly result in significant hardships.
- Unsafe countries. Should the foreign partner come from a country which is deemed to be unsafe as a whole for the British partner, then this clearly amounts to significant hardship.
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The following situations are unlikely to be accepted as ‘insurmountable obstacles.
- Difficulty in adjusting to surroundings. This might include a lack of knowledge of the spoken language, a downgrade in quality of life, whether in terms of accommodation, food or income and any other preference related to surmountable obstacles. In the case of Lal v, The Secretary of State for the Home Department, a British man in his 70s argued that he could not live in his wife’s native India due to the hot conditions. The courts eventually decided that this reason on its own was not sufficient to amount to an insurmountable obstacle. The key here is separating inconvenience or even hardship from significant or serious hardship.
- Separation from siblings or parents. This will generally not be an acceptable reason unless exceptional circumstances can be proven.
Making an Application for Further Leave to Remain
If you or your spouse is already in the UK on a spouse Visa, but it is proving difficult to extend the Visa, then you can use the same human rights principles of ‘insurmountable difficulty’ to apply for further leave to remain in the UK. Further, leave to remain is considered a ‘catch-all’ remedy, and you will need an FLR (HRO) form specifically in order to apply on human rights grounds. Residing in the UK over the duration of a spouse Visa and then the additional 2.5 years you will be granted for a successful further right to remain application will satisfy the five years needed to become eligible for indefinite leave to remain in the UK.
The European Court of Human Rights
In the scenario where your legal advisors believe you have a legitimate case, but every court in the UK has refused to uphold your application for the right to family life, then you do have the right to appeal your case at the European Court of Human Rights in Strasbourg, France.
How Can Gulbenkian Solicitors Help?
Gulbenkian Andonian immigration lawyers london specialise in complex immigration law cases and have a strong track record for successful outcomes in highly contested immigration law issues. Proving ‘insurmountable obstacles’ is a highly complex issue and will require a thorough and experienced team of specialists to make sure your case is properly demonstrated to the courts.
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At Gulbenkian Andonian, we pride ourselves on “Excellence, Experience and Efficiency”. With over 35 years of experience on your side, our team of London based lawyers and solicitors have a wealth of experience advising individuals, families and businesses of all sizes to find clarity on UK law.
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Armen Andonian is the CEO of Solicitors Marketing, a London-based legal marketing agency. He is a legal content marketing expert who writes on UK individual immigration, business immigration, family law, finance, employment law and intellectual property. He has a passion for researching and communicating complex legal concepts and ideas in a clear and engaging manner and has developed a reputation as a highly skilled and versatile author on UK law-related issues. He has written for numerous publications, both online and offline, and his work has been featured in a variety of high-profile media outlets.
