What Are The Insurmountable Obstacles in UK Immigration?

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Dr Bernard Andonian

Dr Bernard Andonian is a highly respected immigration, nationality and human rights lawyer, former Immigration Judge, and recognised expert known for his longstanding experience, academic achievements and contribution to landmark legal decisions.

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Key Points

• “Insurmountable obstacles” under paragraph EX.1(b) of Appendix FM means very significant difficulties in continuing family life outside the UK that cannot be overcome, or that would entail very serious hardship. The Supreme Court in Agyarko v Secretary of State for the Home Department [2017] UKSC 11 confirmed this threshold is high but does not require literal impossibility.
• “Very significant obstacles to integration” under paragraph PL 5.1 of Appendix Private Life demands evidence that the applicant would be unable to integrate into the country of return, or that doing so would entail very serious hardship; ordinary relocation difficulties do not qualify.
• The Court of Appeal in NC v Secretary of State for the Home Department [2023] EWCA Civ 1379 confirmed the test requires a broad evaluative judgment of the applicant’s likely situation on return, including objective evidence and any reasonable steps that could mitigate the obstacles.
• Both tests place the full evidential burden on the applicant. Unsubstantiated assertions carry little weight, and independent documentary evidence tied to the applicant’s specific circumstances is expected throughout.
• From 11 November 2025, Part Suitability applies to Appendix Private Life applications, and a custodial sentence of 12 months or more now triggers mandatory refusal before the obstacles test is ever reached.

Under UK immigration law, two tests with overlapping vocabulary serve distinct legal purposes. The “insurmountable obstacles” test, set out in paragraph EX.1(b) of Appendix FM, applies to applicants who have a qualifying partner but cannot meet the financial or eligibility requirements of the partner route. The “very significant obstacles to integration” test, found in paragraph PL 5.1 of Appendix Private Life, applies to adults with fewer than 20 years’ UK residence who seek leave on private life grounds. Each test carries a high threshold, and each is regularly misunderstood, under-evidenced, or inadequately addressed.

The statutory foundation runs through the Immigration Rules made under the Immigration Act 1971, read alongside section 6 of the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights. Neither test is simply a gateway to leave; both require an honest, evidence-based engagement with the applicant’s actual circumstances. Cases that fail do so less often because the test cannot in principle be met, and more often because the evidence submitted does not meet the standard the caseworker or tribunal expects.

This article examines each test in turn, maps the leading authorities, identifies the evidential standard expected by caseworkers, and draws out the practical lessons from how both tests are applied in practice. The Part Suitability changes introduced in November 2025 have added a new threshold before either test is reached, and Immigration Law Solicitors must now address suitability before turning to the substance.

The Insurmountable Obstacles Test Under Appendix FM

The test derives from paragraph EX.1(b) of Appendix FM. It applies where an applicant has a genuine and subsisting relationship with a qualifying partner, typically a British or settled partner. Still, it cannot otherwise meet the partner route requirements, usually because the applicant entered or remained in the UK unlawfully, or because the relationship formed during a period of precarious status. Paragraph EX.2 defines the term “insurmountable obstacles” as “the 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.” Two limbs follow from the definition: literal impossibility of relocation, or relocation that is theoretically possible but would cause very serious hardship. Either is sufficient.

The Supreme Court set out the correct approach in Agyarko v Secretary of State for the Home Department [2017] UKSC 11. Lord Reed, giving judgment for a unanimous Court, rejected the contention that the test demanded literal impossibility. Very significant difficulties which could not realistically be overcome, or which would entail very serious hardship, could satisfy the test. The threshold remains high: mere preference to live in the UK, relocation-related disruption, or economic disadvantage will not suffice.

The same judgment addressed the relationship between insurmountable obstacles and exceptional circumstances. Where the obstacles test is not met under the Rules, refusal may still be disproportionate if the consequences are unjustifiably harsh. The two analyses are sequential: the obstacles test is considered first, under the Rules; exceptional circumstances are then considered outside the Rules if needed. This structure matters for how applications are prepared and how grounds of appeal are drafted.

Factors Relevant to Insurmountable Obstacles

Home Office guidance on family life and exceptional circumstances, last updated in May 2026, sets out a non-exhaustive list of potentially relevant factors. When advising my clients, I assess each against the specific facts of the case rather than applying them mechanically. Relevant considerations include:

• Inability to enter and lawfully reside in a third country, for example, where the qualifying partner holds refugee status and cannot return to the proposed country of relocation.
• Legal or cultural barriers to the relationship, such as a same-sex couple or an interfaith couple in a jurisdiction where their relationship would expose them to prosecution, persecution, or serious harm.
• Mental or physical disability, or serious illness, including where the treatment required is unavailable in the country of proposed return.
• Breakdown of governance, active conflict, or credible risk of persecution in the relevant country, tied to the applicant’s or partner’s individual profile.
• Dependence on family members in the UK with exceptional care needs that would prevent the partner from relocating.

Two points follow from how caseworkers approach this assessment. First, the assessment must consider both the applicant and the partner individually; a claimed obstacle must be shown to affect the relevant person in practice, given their specific circumstances and the likely reality of life in the proposed country of return. Second, where the applicant or partner has dual nationality, or where the partner has a right of residence in a country other than the applicant’s country of origin, the assessment must cover each available country. An insurmountable obstacle that exists in one country may not exist in another, and an application that fails to address this point is vulnerable.

The Very Significant Obstacles Test Under Appendix Private Life

Paragraph PL 5.1 of Appendix Private Life provides that an adult applicant with fewer than 20 years’ continuous UK residence may qualify for permission to stay if there would be very significant obstacles to their integration into the country where they would have to live if required to leave. The Home Office Private Life caseworker guidance clearly states that the starting point is the assumption that the applicant will be able to integrate into their country of return. The burden shifts entirely to the applicant to displace that assumption. A very significant obstacle means something that would prevent or seriously inhibit integration; needing to relearn a language or find employment does not qualify.

The factors the guidance lists for this assessment include: cultural ties and familiarity with the country of return; time spent there; the availability of family, friends, or a social network; faith, political orientation, sexual orientation, or gender identity; language ability; and employment prospects compared against conditions in that country. Each factor carries weight, but the guidance also requires decision-makers to weigh them cumulatively. Several individually insufficient factors may, in combination, meet the threshold. The cumulative framing must be made explicit in any application; leaving the assessment implicit invites refusal.

NC v SSHD and the Objective Nature of the Test

The Court of Appeal clarified the approach to the very significant obstacles test in NC v Secretary of State for the Home Department [2023] EWCA Civ 1379. The appellant’s only identified obstacle was a genuine but objectively unfounded subjective fear of reprisal on return. The Court confirmed that the test is not purely subjective. It extends to all aspects of the appellant’s likely situation on return, including objective evidence, and requires consideration of any reasonable step that could be taken to avoid or mitigate the obstacles.

Where the only obstacle identified is an unverified subjective fear, the assessment must examine how that fear would, in practice, impede reintegration in the specific country concerned. Psychological or psychiatric evidence may assist where a genuine subjective fear would prevent effective functioning on return; it cannot simply be assumed that it will. The likely reality for the appellant on resuming their life must be assessed in the round, taking account of available support, mitigation, and individual circumstances. Cases prepared solely on witness statement evidence, without objective country information or expert analysis, are at risk after NC.

Evidential Requirements in Practice

Both tests place the evidential burden squarely on the applicant, and the Home Office expects independent, verifiable documentary evidence for any claim made.

For the insurmountable obstacles test, the form of evidence depends on the nature of the obstacle. Medical claims require current clinical evidence from treating practitioners: an old diagnosis without current evidence of its impact will carry little weight. Persecution or discrimination risks require country-specific expert evidence and objective country information tailored to the applicant’s background, nationality, and profile. Claims that a partner cannot enter a third country require legal opinion from practitioners in that jurisdiction confirming the position both in law and in practice.

For very significant obstacles under PL 5.1, the assessment focuses on the country of return rather than the UK. The caseworker guidance is explicit: evidence of integration in the UK, while relevant to an Article 8 proportionality analysis if the application fails under the Rules, is not relevant to the very significant obstacles analysis itself. I often have clients whose initial Immigration Law Solicitor tried to lead with UK integration evidence to establish obstacles on return. This approach is directing the assessment at the wrong question. The evidence must address the applicant’s individual circumstances in relation to conditions in the country of return.

Common Refusal Reasons and Evidential Antidotes

Caseworkers refuse applications under both tests on broadly similar grounds. Understanding the most frequent reasons allows me to address them before an application is submitted rather than on appeal.

• Assertions are unsubstantiated. The applicant has named an obstacle but provided no independent documentary evidence. Clinical reports, expert opinion, country information, or legal evidence of the applicable position in the country of return are needed.
• The obstacle exists but can be overcome. The caseworker accepts the difficulty but concludes it is not severe enough. Evidence must address not just the existence of the obstacle but its severity and practical consequences for the specific applicant.
• Country conditions are not personalised. General country information has been submitted without linking it to the applicant’s individual background and likely situation. Country information must be tied to the specific features of the case.
• Cultural ties or language negate the obstacle. The caseworker has inferred that familiarity with a country’s culture or basic language skills indicates that integration is achievable. Evidence must show why the applicant’s specific characteristics, such as sexuality, religion, or political profile, would prevent effective use of those ties.
• Family or friends are available in the country of return. The caseworker treats available support as neutralising the obstacle. Evidence must address the quality of those relationships, any estrangement, risk from family members, or inability to rely on them for the specific support needed.

Part Suitability and the November 2025 Changes

From 11 November 2025, the Home Office consolidated all suitability grounds into a new Part Suitability, introduced by the Statement of Changes HC 1333 and replacing Part 9 of the Immigration Rules. Details of the practical effect on private and family life applications are addressed in our guide to how Part Suitability affects human rights applications. Part Suitability now applies to Appendix Private Life applications, and its effect on private life claims is direct: the obstacles test is only reached if the suitability hurdle is first cleared.

Mandatory refusal applies where an applicant has received a custodial sentence of 12 months or more. This bar is permanent and carries no time-based exception; the previous flexibility under Part 9, which allowed for consideration of older convictions after a sufficient period had elapsed, no longer applies. Discretionary refusal grounds now extend to previous immigration breaches, including overstaying, unpaid NHS debts of £500 or more, and unpaid litigation costs.

The Article 8 safety valve survives. Where a mandatory suitability ground applies but refusal would be incompatible with section 6 of the Human Rights Act 1998 and Article 8 ECHR, the guidance requires consideration of proportionality. The threshold for invoking Article 8 to override a mandatory suitability refusal is high, however, and simply because the substantive obstacles case is strong does not mean the threshold will be met

Rhuppiah and Private Life Built Precariously

The Supreme Court’s decision in Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58 remains directly relevant for applicants whose private life in the UK was built during a period of precarious or unlawful residence. Lord Wilson confirmed that precarious immigration status under section 117B(5) of the Nationality, Immigration and Asylum Act 2002 means any leave short of indefinite leave to remain. Little weight must be given to a private life established during any such period.

The relevance to the obstacles analysis is procedural: the strength of an applicant’s UK private life is not part of the very significant obstacles assessment, but it becomes directly relevant at the Article 8 proportionality stage if the application fails under the Rules. Applicants who have built particularly strong private lives in the UK through community engagement, close relationships, or exceptional circumstances should prepare evidence of that private life in parallel with the obstacles evidence, even though the two analyses are formally separate. Lord Wilson left open the possibility that, in an exceptional case, the quality of the private life established may attract more than little weight even during a period of precarious status.

Policy and the Immigration White Paper

The May 2025 Immigration White Paper signals a continued hardening of the environment for private and family life applicants. The proposed extension of the settlement pathway for those who overstayed or entered unlawfully to 30 years or more will lengthen the journey for many applicants who successfully establish either test. The tests themselves will not be removed, but the period of leave before settlement becomes available will increase for those who enter through this route.

Practical Implications for Clients

Both tests require the same discipline as a contested tribunal application. The evidence must be assembled, reviewed, and arranged before the application is filed, not put together in response to a refusal.

• Identify each specific obstacle early. A broad claim that return would be difficult or uncomfortable will not succeed. Each obstacle must be named, particularised, and independently evidenced.
• Commission expert evidence where the claim demands it. Medical claims require current clinical reports from treating practitioners. Persecution risk requires country expert analysis tied to the applicant’s profile. Claims about the inability to enter or reside in a third country require legal opinion from practitioners in that jurisdiction.
• Address each factor individually and then cumulatively. Even where single factors are insufficient on their own, a combination of factors may clear the threshold. This cumulative framing must be made explicit in the application letter.
• Address Part Suitability before turning to the substantive test. Any criminal conviction or immigration breach must be disclosed fully and addressed directly. A suitability refusal will not engage the obstacles analysis at all.
• Prepare Article 8 evidence in parallel. Evidence of the strength and quality of the private or family life in the UK will be needed at the proportionality stage if the obstacles test is not met under the Rules.

In my experience, the applications and appeals that succeed are those in which the evidence has been rigorously gathered and the legal framework has been applied precisely to the individual facts.

Frequently Asked Questions

What is the difference between the insurmountable obstacles test and the very significant obstacles test?

The insurmountable obstacles test applies under Appendix FM, where a couple cannot meet the standard partner route requirements and must show that family life cannot realistically continue outside the UK. The very significant obstacles test applies under Appendix Private Life, where an adult with fewer than 20 years’ UK residence must show that integration in the country of return would be prevented or seriously inhibited. The evidential focus differs: the first concerns the couple’s joint circumstances across all available countries; the second concerns the individual’s likely position in the specific country of return.

Does the insurmountable obstacles test require that relocation is literally impossible?

No, literal impossibility is not required. The Supreme Court in Agyarko v SSHD [2017] UKSC 11 confirmed that it is sufficient to show that the difficulties could not realistically be overcome, or that overcoming them would entail very serious hardship. The very significant obstacles test similarly does not demand impossibility; it requires evidence that integration would be prevented, seriously inhibited, or would involve very serious hardship.

What evidence is needed for a very significant obstacles claim?

The Home Office expects independent, verifiable documentary evidence tied to the applicant’s specific circumstances. Relevant evidence includes current medical reports, country expert evidence, objective country information particularised to the applicant’s background, legal opinion on the applicant’s ability to enter and reside in the proposed country, and evidence of specific risk factors arising from faith, sexuality, political opinion, or other protected characteristics. A witness statement alone, without supporting objective evidence, will rarely suffice.

Will a criminal conviction automatically prevent an application?

Yes, a custodial sentence of 12 months or more now triggers mandatory refusal under Part Suitability for Appendix Private Life applications, regardless of the strength of the substantive obstacles case. This bar has applied from 11 November 2025 and carries no time-based exception. For lesser convictions, discretionary refusal applies, and the full circumstances must be weighed, including whether refusal would breach Article 8.

Can Article 8 save an application that fails the obstacles test?

Yes, though the threshold is high. If an application fails the obstacles test under the Rules, the caseworker must then consider whether refusal would breach Article 8 ECHR. The strength and quality of the private or family life in the UK becomes directly relevant at this stage. The Supreme Court in Rhuppiah v SSHD [2018] UKSC 58 confirmed that while little weight is normally given to a private life built during precarious status, there is room for the quality of the private life to be weighed in exceptional cases. Strong evidence of integration, close relationships, and the likely consequences of removal should be prepared in every case that may need to rely on Article 8 outside the Rules.