How is this fact-sensitive assessment carried out?Ī number of factors to consider that are outlined in the guidance. How are ‘insurmountable obstacles’ assessed? However, the assessment, according to the guidance, should be made with reference to country of origin information, relevant national laws, attitudes and situation in the relevant country. In Jeunesse, for example, there were said to be no ‘insurmountable obstacles’ to the relocation of a family to Suriname, even though all of the children, the eldest of which was at secondary school, were Dutch nationals, had lived all of their lives in Holland and had never visited Suriname. In the second situation, the person in question would have to face very serious hardship entailed by overcoming the obstacle.Īs the guidance makes clear, a significant degree of hardship or inconvenience does not amount to an insurmountable obstacle, even if ‘a British citizen partner who has lived in the UK all their life, has friends and family here, works here and speaks only English’ has to ‘uproot and relocate halfway across the world’. For example, ‘because they would not be able to gain entry to the proposed country of return’. In the first situation, the applicant would face a very significant difficulty meaning that it would be literally impossible to continue the family life together overseas. This definition of ‘insurmountable obstacles’ provides for two types of situation elaborated on by the Home Office Guidance in this area. Paragraph EX.2 of the immigration rules provides a starting point in defining ‘insurmountable obstacles’ as the ‘very significant difficulties which would be faced by the applicant or their partner…which could not be overcome, or would entail very serious hardship for the applicant or their partner’. However, the strictness of the test is mitigated by a realistic and practical approach which will be sensitive to the facts of each case. In Agyarko, it was held that this test, though strict, was compatible with Article 8, and that, in addition, ‘the rules are not a summary of European court’s case law, but a statement of the Secretary of State’s policy’.
In contrast to the more generous wording used by the European Court of Human Rights, such as ‘ un obstacle majeur’ or a ‘ major impediment’, the word ‘insurmountable’ necessarily indicates a very high threshold. This will be possible if they are able to show that they would face ‘insurmountable obstacles to family life continuing outside the UK with that partner’ as outlined in EX.1.(b) of the Immigration Rules.Īs indicated by the wording, this is a strict test. What happens when an applicant for leave to remain in the UK as the partner of a British or settled person does not meet all of the requirements of the immigration rules? They may still be able to acquire leave to remain on the basis of their right to private and family life under Article 8 of the European Convention on Human Rights. We passed rapidly along the sun was hot, but we were sheltered from its rays by a kind of canopy while we enjoyed the beauty of the scene, sometimes on one side of the lake, where we saw Mont Salêve, the pleasant banks of Montalègre, and at a distance, surmounting all, the beautiful Mont Blanc, and the assemblage of snowy mountains that in vain endeavour to emulate her sometimes coasting the opposite banks, we saw the mighty Jura opposing its dark side to the ambition that would quit its native country, and an almost insurmountable barrier to the invader who should wish to enslave it.Richmond Chambers LLP | View firm profile The latter method of obtaining the desired intelligence was dilatory and unsatisfactory besides, I had an insurmountable aversion to the idea of engaging myself in my loathsome task in my father’s house while in habits of familiar intercourse with those I loved.Ĭold, want, and fatigue were the least pains which I was destined to endure I was cursed by some devil and carried about with me my eternal hell yet still a spirit of good followed and directed my steps and when I most murmured would suddenly extricate me from seemingly insurmountable difficulties. I saw an insurmountable barrier placed between me and my fellow men this barrier was sealed with the blood of William and Justine, and to reflect on the events connected with those names filled my soul with anguish.
It is not to be supposed that any prior attachment on your side-in short, you know as to an attachment of that kind, it is quite out of the question, the objections are insurmountable-you have too much sense not to see all that. (Frankenstein, by Mary Wollstonecraft Shelley)
(His Last Bow, by Sir Arthur Conan Doyle)īut that cannot be the human senses are insurmountable barriers to our union. “And yet, with a little more material, we may prove that they are not insurmountable,” said Holmes.
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