Insurmountable Obstacles and Exceptional Circumstances Tests in Appendix FM

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.

This means that an insurmountable obstacle can take two forms:

• 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
• 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 would entail very serious hardship for one or both of them.

The assessment of whether there are “insurmountable obstacles” is a different and more stringent assessment than whether it would be “reasonable to expect” the applicant’s partner to join them overseas. For example, 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, but a significant degree of hardship or inconvenience does not amount to an insurmountable obstacle. ECHR Article 8 does not oblige the UK to accept the choice of a couple as to which country they would prefer to reside in.

The assessment of whether family life can continue overseas will generally consider the proposed country of return, unless there is information to suggest that the applicant or their partner might have a choice about where they choose to relocate to, such as where one or both of them has or have a right to reside in a country other than the country of return, or where one or both of them has or have more than one nationality. In that case the decision maker can take account of whether there are insurmountable obstacles to family life continuing in any of the relevant countries.

Lack of knowledge of a language spoken in the country in which the couple would be required to live would not usually amount to an insurmountable obstacle. It is reasonable to conclude that the couple must have been communicating whilst in the UK. Therefore, it is possible for family life to continue outside the UK, whether or not the partner chooses to also learn a language spoken in the country of proposed return.

Being separated from extended family members – such as might happen where the partner’s parents and/or siblings live here – would not usually amount to an insurmountable obstacle unless there were particular exceptional factors in the case.

A material change in the quality of life for the applicant and their partner in the country of return, such as the type of accommodation they would live in, or a reduction in their income, would not usually amount to an insurmountable obstacle.

The factors which might be relevant to the consideration of whether an insurmountable obstacle exists include but are not limited to:

1. Ability to lawfully enter and stay in another country. The decision maker should consider the ability of the parties to lawfully enter and stay in another country. Decision makers should consider country policy and information where relevant. However, the onus is on the applicant to show that it is not possible for them and their family to enter and stay in another country for this to amount to an insurmountable obstacle. A mere wish, desire or preference to live in the UK would not amount to an insurmountable obstacle.
2. Cultural barriers. This might be relevant in situations where the partner would be so disadvantaged that they could not be expected to go and live in that country, for example, a same-sex couple where the UK partner would face substantial social discrimination, or where the rights and freedoms of the UK partner would be severely restricted. It must be a barrier which either cannot be overcome or would present a very serious hardship to the partner such that it amounts to an insurmountable obstacle.
3. The impact of a mental or physical disability. Whether or not either party has a mental or physical disability, a move to another country may involve a period of hardship as the person adjusts to their new surroundings. But a physical or mental disability could be such that in some circumstances it could lead to very serious hardship, for example, due to lack of health care that amounted to an insurmountable obstacle.
4. The security situation in the country of return. In some circumstances, there may be particular risks to foreign nationals which extend to the whole of the country of return.

For expert advice and assistance in relation to an application for a Family and Private Life visa, contact our immigration advisers in London on 0203 909 8399 or contact us online.

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