Family Life as a Partner Based on Insurmountable Obstacles
Partner applications under Appendix FM of the Immigration Rules contain strict eligibility requirements for a grant of leave to remain on the 5-year route to settlement. If a partner is unable to meet the strict requirements of the 5-year partner route they may be able to rely on the exception set out in EX.1. of Appendix FM to extend their stay and eventually settle in the UK on the 10-year route.
Article 8 of the European Convention on Human Rights (ECHR) protects your right to respect for private and family life. This attests if you are a British citizen or Settled in the UK you should be able to live with your foreign partner and enjoy family life together. Partners may still be entitled to leave to remain due to their right to private and family life if they are able to show they would face insurmountable obstacles to family life continuing outside the UK with their partner. This post explores the exception within Appendix FM and specifically, ‘insurmountable obstacles’.
What is the Definition of a ‘Partner’?
A ‘partner’ is defined under paragraph GEN.1.2. of the general provisions in Appendix FM as one of the following:
- the applicant’s spouse;
- the applicant’s civil partner;
- the applicant’s fiancé, fiancée or proposed civil partner;
- a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least 2 years prior to the date of application.
When is the Partner Exception Relevant?
If a partner cannot meet all the requirements for entry clearance or leave to remain on the 5-year route then there may be a possibility to rely on the exception outlined in Section EX.1. of Appendix FM of the Immigration rules. This is not a standalone provision but applies when a partner meets some of the requirements and qualifies for an exception to the other requirements because EX.1. is met.
We have previously set out the strict eligibility requirements for a grant of leave to remain on a 5-year route to settlement for the Partner routes (including the Spouse Visa, Civil Partner Visa, Unmarried Partner Visa, Fiance Visa and Proposed Civil Partner Visa).
Examples of the requirements that do not need to be met include the financial requirement, accommodation requirement, English language requirement and immigration status (not in the UK as a visitor) requirement.
What are the Requirements That Must Be Met?
The relationship requirements in Appendix FM must be met for leave to remain as a partner under the exception. The relevant paragraphs in the Immigration Rules for entry clearance are E-ECP.2.1. to 4.2., and E-LTRP.1.2. to 4.2. for leave to remain.
The relationship requirements are as follows:
- The Applicant’s partner is either British, present and settled in the UK, in the UK with refugee leave or with humanitarian protection, 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);
- The Applicant and their partner are both aged 18 and above;
- The Applicant and their partner are not within the prohibited degree of relationship;
- The couple has met in person;
- They have a genuine and subsisting relationship;
- They have a valid marriage or civil partnership;
- All previous relationships have permanently broken down;
- They intend to live permanently in the UK;
- The Applicant is not in the UK as a visitor or with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé, fiancée or a proposed civil partner, or was granted pending the outcome of family court or divorce proceedings.
What are the Requirements for the Partner Exception?
Paragraph EX.1. of Appendix FM outlines the requirements for meeting the partner exception:
- Their partner is either British, settled in the UK, holds refugee or humanitarian protection status, limited leave under Appendix EU, or limited leave as a worker or business person;
- The Applicant has a genuine and subsisting relationship with their partner;
- The Applicant or their partner would face ‘insurmountable obstacles’ to family life continuing outside the UK.
EX.1. This paragraph applies if
(b) 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 refugee leave, or humanitarian protection, 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.
What is the definition of ‘Insurmountable Obstacles’?
Paragraph EX.2. of Appendix FM defines ‘insurmountable obstacles’.
EX.2. For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means 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.
An insurmountable obstacle can take 2 forms, either:
- 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;
- 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.
What is the Assessment for Insurmountable Obstacles?
The assessment is one of proportionality and a balancing exercise between individual rights and the public interest. The assessment is whether family life can continue overseas in the likely situation in the proposed country of return.
If the Applicant or partner has more than one nationality, insurmountable obstacles to family life continuing will be considered in any of the relevant countries. The assessment will consider the relevant national laws, attitudes and situation in the relevant country.
The assessment of whether there are ‘insurmountable obstacles’ is very fact sensitive and is based on the individual circumstances of the Applicant and their partner. Each case is assessed on its own merit and the onus is on the Applicant to show that there are insurmountable obstacles.
The assessment is very strict and disregards preference or inconvenience. Although the test has a very high threshold, the case of Agyarko held that the strict test was compatible with Article 8.
An example from the guidance is “a British citizen partner who has lived in the UK all their life, has friends and family here, works here and speaks only English may not wish to uproot and relocate halfway across the world, and it may be very difficult for them to do so”. However, this case would not be considered as an insurmountable obstacle as “a significant degree of hardship or inconvenience does not amount to an insurmountable obstacle”.
Additionally, language barriers, separation from extended family members, or a material change in quality of life will generally not be considered as insurmountable obstacles.
What are Good Examples of Insurmountable Obstacles?
A number of relevant factors to consider are outlined in the guidance:
- The inability to lawfully enter and stay in the partner’s country, e.g. the partner is a refugee and the applicant is from the same country;
- Serious cultural barriers, e.g. a same sex couple or interfaith couple where the UK partner would face a real risk of prosecution, persecution or serious harm in the country of proposed relocation, as a result of their relationship or faith. The assessment is of the situation in practice of the relevant country and not just the country’s laws;
- Mental or physical disability, or a serious illness requiring ongoing medical treatment. An inadequacy of available healthcare in the relevant country. This also relates to the partner’s family members if there are exceptional circumstances of dependence that would prevent separation;
- The absence of governance or security in the relevant country. For example, danger due to war, political unrest, or natural disasters.
Contact our Immigration Barristers
For expert advice and assistance regarding an immigration application or immigration appeal involving human rights and the partner or parent route, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.
