In accordance with Article 8 of the European Convention on Human Rights (ECHR) and the right to private and family life, a British citizen or person who is settled has the right to live and enjoy a family life with their foreign partner in the UK. If you wish to make a partner visa application to join your loved one in the UK, but you do not meet all of the eligibility requirements, you may still be able to apply if you can prove there are “insurmountable obstacles” to living in another country, as defined in section EX.1. of Appendix FM. In this article, we will explain the exceptions to the eligibility criteria for those applying as a partner under the family visa route and what is meant by “insurmountable obstacles”.
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Section EX.1. of Appendix FM
Paragraph EX.1.b of Appendix FM, “Exceptions to certain eligibility requirements for leave to remain as a partner or parent”, states that an exception may be made where:
“The applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with protection status, in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), or in the UK with limited leave as a worker or business person under Appendix ECAA Extension of Stay in accordance with paragraph GEN.1.3.(e), and there are insurmountable obstacles to family life with that partner continuing outside the UK.”
This means that a person who is in a genuine and ongoing relationship with a British national or a person who is settled in the UK may be able to apply for a partner visa if there are “insurmountable obstacles” to their family life if they cannot stay in the UK.
What Does “Insurmountable Obstacles” Mean?
Paragraph EX.2. of Appendix FM states that “insurmountable obstacles” refers to:
“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”.
Breaking this down further, insurmountable obstacles can take 2 forms:
- A very significant difficulty which would be almost impossible to overcome, meaning it would not be possible to continue family life with your partner overseas. This may be the case if your partner cannot gain entry to the proposed country of return.
- A very significant difficulty which you or your partner would face in terms of continuing your family life together outside the UK which could be overcome but would entail very serious hardship for one or both of you.
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As the UKVI guidance on family life applications confirms, for applications of this type to succeed, it is not enough to state that there would be a significant degree of hardship or inconvenience to your UK partner if you both have to live in another country. This is because Article 8 of the ECHR does not impose an obligation on the UK to accept your application just because you would both like to live here. For example, it is unlikely that you will be able to successfully argue that your UK partner would face insurmountable obstacles because they do not speak the language in the other country, nor would being separated from extended family members or a material change in the quality of life.
Situations that may give rise to a successful application might include where:
- Your partner would be separated from a child from a former relationship – even in this scenario, it would be necessary to prove that it would be unjustifiably harsh to expect the child to move overseas with the applicant’s partner or for the applicant’s partner to do so without the child.
- There are serious cultural barriers to relocation overseas – e.g. for same-sex or inter-faith couples where the UK partner would face a real risk of prosecution, persecution or serious harm in the country of proposed relocation, or
- The UK-based partner has a mental or physical disability or a serious illness which requires ongoing medical treatment – you would need to prove that there is a lack of suitable treatment in the other country and the impact of not receiving treatment.
Final Words
To make a successful partner visa application on the basis of your human rights, if you do not meet the standard criteria, it is down to you to prove that you meet the threshold for insurmountable obstacles. It is essential to carefully prepare your application and to ensure that you have all of the necessary documents (in the correct format and translated where necessary) to back up your case. This is why engaging the help of an immigration Solicitor is invaluable. They will ensure that you not only meet the exceptional criteria but also that you meet the evidential requirements. They will also prepare a detailed covering letter outlining all of the circumstances of your application and why you meet the threshold for “insurmountable obstacles”.
Gulbenkian Andonian specialises in the most complex and urgent immigration applications and appeals cases. Our immigration appeal solicitors have successfully assisted many individuals and their family members in overcoming overwhelming odds to remain in the UK; let us do the same for you. Call us on +44 (0) 207 269 9590 or fill out the form below to discuss your matter with one of our friendly and empathetic team.
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. Call us on +44 (0) 207 269 9590 or fill out the form below. We usually reply within a few hours. Neither Gulbenkian Andonian Solicitors ltd, nor their employees, agents, consultants or assignees, accept any liability based on the contents of written articles which are meant for guidance only and not as legal advice. We advise all readers to take professional advice before acting. If you would like to consult with a professional lawyer or solicitor to discuss your case, please do not hesitate to contact us directly. This site uses reCAPTCHA and is protected by the Google privacy policy and terms of service.Ask our Expert Legal Team
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Dr Bernard Andonian – the Co-Founder of Gulbenkian Andonian Solicitors, is an experienced Immigration Solicitor, former Judge, and recipient of a PhD in Law from the University of West London. He has over four decades of experience practising UK Immigration, Human Rights and Civil Litigation Law. He has served on the Law Society Immigration Law Panel, achieved numerous groundbreaking decisions in higher courts and is featured in the Legal 500’s Hall of Fame.
