The Court of Appeal's judgment on the "insurmountable obstacles" test

The Court of Appeal (The Masters of the Rolls, Asplin LJ and Leggatt LJ) hands down its judgment in Lal v Secretary of State for the Home Department [2019] EWCA Civ 1925. Permission to appeal was given in this case by Hamblen LJ to enable the Court of Appeal to consider whether the "insurmountable obstacles" test in Paragraph EX1 of Appendix FM to the Immigration Rules involves an "objective" or "subjective" consideration.

The Court of Appeal, on the issues of law, held that:

1. The Secretary of State's published guidance, Family Policy: Family Life (as a partner or parent, private life and exceptional circumstances), version 3.0, provides "an appropriate explanation of the effect of paragraph EX.2. and accordingly of what is meant by "insurmountable obstacles" in paragraph EX.1.(b) of Appendix FM": [35]
2. This means that "insurmountable obstacles" can take two forms, namely "first, a very significant difficulty which would be literally impossible to overcome, so it would be impossible for family life with the applicant's partner to continue overseas (for example, because they would not be able to gain entry to the proposed country of return); or second, a very significant difficulty which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could be overcome but to do so would entail very serious hardship for one or both of them": [35].
3. "In applying this [insurmountable obstacles] test, a logical approach is first of all to decide whether the alleged obstacle to continuing family life outside the UK amounts to a very significant difficulty.  If it meets this threshold requirement, the next question is whether the difficulty is one which would make it impossible for the applicant and their partner to continue family life together outside the UK.  If not, the decision-maker needs finally to consider whether, taking account of any steps which could reasonably be taken to avoid or mitigate the difficulty, it would nevertheless entail very serious hardship for the applicant or their partner (or both)": [36].
4. "The [insurmountable obstacles] test cannot … reasonably be understood as subjective in that sense" and "To treat it as such would substantially dilute the intended stringency of the test and give an unfair and perverse advantage to an applicant whose partner is less resolute or committed to their relationship over one whose partner is ready to endure greater hardship to enable them to stay together": [37].
5. It is "open to courts and tribunals in cases where a relationship with a qualifying partner is established at a time when a person is lawfully present in the UK but does not have indefinite leave to remain to give such weight to the relationship as is appropriate in the circumstances of the particular case": [59].
6. "In considering … whether there are 'exceptional circumstances', the applicable test is whether refusing leave to remain would result in "unjustifiably harsh consequences" for the applicant or their partner, such that refusal would not be proportionate": [68].

The Court of Appeal's full judgment is available here.