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Relevant factors are said to include the ability of the parties to enter and stay lawfully in the country concerned; cultural and religious barriers; and the impact of a mental or physical disability. STA |
In relation to the second of these, the Instructions reiterate that the barrier must be one which either cannot be overcome or which it is unreasonable to expect a person to overcome. STA |
The Instructions state that although refusal of an application will normally be appropriate where the applicant does not meet the requirements of the Rules, leave can be granted outside the Rules where exceptional circumstances apply. STA |
In that regard, the Instructions state: Exceptional does not mean unusual or unique. STA |
Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. STA |
For example, a case is not exceptional just because the criteria set out in EX.1. STA |
of Appendix FM have been missed by a small margin. STA |
Instead, exceptional means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. STA |
That is likely to be the case only very rarely. STA |
(para 3.2.7d) In determining whether there are exceptional circumstances, the decision maker is instructed to consider all relevant factors. STA |
Some examples are given: The circumstances around the applicants entry to the UK and the proportion of the time they have been in the UK legally as opposed to illegally. STA |
Did they form their relationship with their partner at a time when they had no immigration status or this was precarious? Family life which involves the applicant putting down roots in the UK in the full knowledge that their stay here is unlawful or precarious, should be given less weight, when balanced against the fac... |
It is also pointed out that cumulative factors should be considered. STA |
In particular, although under the Rules family life and private life are considered separately, when considering whether there are exceptional circumstances both private and family life can be taken into account. STA |
The facts: Agyarko FAC |
Ms Agyarko is a national of Ghana. FAC |
She entered the UK as a visitor in 2003, when she was aged 40. FAC |
Her leave to enter expired later that year. FAC |
She has nevertheless remained in the UK ever since. FAC |
Following the expiry of her leave to enter she began a relationship with Mr Benette, a naturalised British citizen of Liberian origin who has lived in the UK for almost all his life and is in full time employment. FAC |
They married by proxy under Ghanaian customary law in 2012. FAC |
They live together. FAC |
They have no children together. FAC |
Ms Agyarko has three children living in Ghana, but has not visited them since 2003. FAC |
In September 2012 Ms Agyarko applied for leave to remain in the UK. FAC |
Her application conceded that her case fell outside the Rules, and submitted that it was an appropriate case for the grant of discretionary leave, consistently with article 8. FAC |
It was said that she was settled in the UK and had developed strong social ties there, that her family ties in Ghana had been weakened by her long absence and that most of her friends there had moved abroad. FAC |
The application disclosed that she had a mother, three children by a former husband, and two siblings living in Ghana. FAC |
The effect of removal to Ghana upon her family life was addressed in the following terms: Our client and her husband would be seriously disadvantaged in the sense that she may be separated from him and therefore the family life that they have established in the United Kingdom would be interrupted. FAC |
Most disturbingly our client is likely to face an inordinate delay in obtaining an entry clearance to the UK if she were asked to do so and there is also a risk that her application would be refused due to the fact that she is a previous overstayer. FAC |
The application was refused by a notice of decision dated 7 October 2013. FAC |
The decision considered separately whether Ms Agyarko qualified for leave to remain under the partner route provisions of Appendix FM (ie Section R-LTRP) or under the private life provisions of the Rules (which are not in issue in these appeals), and whether her application gave rise to any exceptional circumstances wh... |
fulfil paragraph EX.1(b): In relation to Appendix FM, the decision stated that Ms Agyarko failed to You have a genuine and subsisting relationship with your British partner. FAC |
Whilst it is acknowledged that your partner has lived in the UK all his life and is in employment here, this does not mean that you are unable to live together in Ghana. FAC |
Although relocating there together may cause a degree of hardship for your British partner, the Secretary of State has not seen any evidence to suggest that there are any insurmountable obstacles preventing you from continuing your relationship in Ghana. FAC |
The application under the partner route was therefore refused. FAC |
Ms Agyarko was also found to fail to qualify for leave to remain on the basis of her private life. FAC |
Finally, the decision stated that it had been considered whether the application raised any exceptional circumstances which, consistently with article 8, might warrant consideration of a grant of leave to remain outside the requirements of the Rules. FAC |
It had been decided that it did not. FAC |
The refusal of Ms Agyarkos application was not appealable. FAC |
She sought permission to apply for judicial review of the Secretary of States decision, but that was refused by the Upper Tribunal. FAC |
She was granted permission to appeal to the Court of Appeal against that refusal, but her appeal was dismissed. FAC |
The judgment of the court is considered below. FAC |
The facts: Ikuga FAC |
Ms Ikuga is a national of Nigeria. FAC |
She lived there until she entered the UK as a visitor in 2008, when she was aged 33. FAC |
Her leave to enter expired in 2009. FAC |
She has nevertheless remained in the UK ever since. FAC |
At some point following the expiry of her leave to enter, she began a relationship with Mr Ijiekhuamhen, a British citizen. FAC |
They have never married, and have no children together. FAC |
It should be recorded that, in the course of this appeal, Ms Ikuga claimed that she was granted an extension of her leave to enter in 2010. FAC |
That has not been verified. FAC |
In September 2012 Ms Ikuga applied for leave to remain in the UK on the basis that her removal to Nigeria would be in breach of article 8. FAC |
It was said by the solicitors acting on her behalf that she cohabited with her partner, Mr Ijiekhuamhen, and that they had been trying to conceive a child, but that due to her medical issues this had been very difficult. FAC |
The letter also said that their relationship could not be maintained and enjoyed in Nigeria as she is trying to conceive, and that Mr Ijiekhuamhen had been responsible for her medical bills while she was receiving private medical treatment. FAC |
The letter also referred to her close relationship with her sister and her children, who lived in the UK, and with Mr Ijiekhuamhens daughter, who lived with her mother but visited her father. FAC |
It was said that Ms Ikuga had no family ties in Nigeria, and that most of her friends were now settled in the UK. FAC |
It was also said that Ms Ikuga had been a regular visitor to the UK without breaching its immigration rules until she was taken seriously ill and admitted to hospital in September 2009. FAC |
A supporting letter from Mr Ijiekhuamhen gave a different address from that given by Ms Ikuga. FAC |
He stated that they had lived together at his address for two years, that she was still not well, and that she relied on him for assistance with her daily needs. FAC |
He did all the washing, cooking and shopping, and above all he maintained her financially and was her major carer. FAC |
He had a full time job in the UK and could not leave the UK for Nigeria. FAC |
He also stated that no-one else could provide the care Ms Ikuga needed, and that there was no medical care for her needs in Nigeria. FAC |
Medical documentation submitted with included correspondence from Lewisham Hospital and Kings College Hospital, dating from 2010 and 2011, indicating that Ms Ikuga had a prolonged admission in 2009, during which she was treated in the intensive care unit, and that she underwent further investigations and treatment as a... |
There was also a letter from a consultant haematologist dated 19 January 2010, giving a provisional diagnosis that Ms Ikuga suffered from Adult Stills disease, and stating that she had been referred to a consultant rheumatologist, and a letter from a consultant rheumatologist dated 2 December 2010, stating that Ms Ikug... |
In response to the application, the Secretary of State requested documentary evidence that Ms Ikuga had been living with her partner, and letters from a GP or consultant detailing her current medical condition, her current medication or treatment, and her ability to travel. FAC |
She was informed that, if she failed to provide the additional information requested, her application would be decided on the basis of the information currently available. FAC |
the application FAC |
In their response, dated 24 October 2013, Ms Ikugas solicitors submitted a household bill addressed to both herself and Mr Ijiekhuamhen at the address which he had given, and a print-out dated 24 October 2013 of Ms Ikugas GP records, which recorded the hospital admission in 2009, investigations during 2009 and 2010, an... |
The most recent entry was dated 3 August 2012, and related to a skin rash. FAC |
The application was refused by a notice of decision dated 29 October 2013. FAC |
The decision addressed the issues in the same order as that in Ms Agyarkos case. FAC |
In relation to the partner route, it stated that Ms Ikuga had provided no evidence to show that she had been living at the same address as Mr Ijiekhuamhen. FAC |
She did not therefore have a partner as defined in Appendix FM. FAC |
Ms Ikuga was also found to fail to qualify for leave to remain on the basis of her private life. FAC |
Finally, the decision stated that it had been considered whether the application raised any exceptional circumstances which, consistently with article 8, might warrant consideration of a grant of leave to remain outside the requirements of the Rules. FAC |
It had been decided that it did not. FAC |
Although she claimed to be suffering from medical conditions, she had been unable to provide any documentary evidence to show any recent conditions or treatment. FAC |
Her claimed conditions had therefore been deemed not to be life threatening, or compelling and compassionate enough to grant leave outside the Rules. FAC |
Ms Ikuga was refused permission to apply for judicial review of the Secretary of States decision. FAC |
Although the Upper Tribunal judge accepted that there had been a failure to give proper consideration to the question whether Ms Ikuga and Mr Ijiekhuamhen lived together, he considered that her application for leave to remain was bound to fail in any event. FAC |
Under the Rules, she would have to establish insurmountable obstacles within the meaning of paragraph EX.1(b), but the matters put forward on her behalf could not possibly persuade any decision-maker that there were insurmountable obstacles to family life continuing in Nigeria. FAC |
In that regard, the judge observed that the fact that Ms Ikugas partner would have to change jobs was not an insurmountable obstacle; nor was Ms Ikugas wish to continue fertility treatment in the UK. FAC |
An application outside the Rules was also bound to fail: the matters put forward did not come close to establishing that it would be unjustifiably harsh to require her to return. FAC |
An argument founded on Chikwamba v Secretary of State for the Home Department [2008] UKHL 40; [2008] 1 WLR 1420 was not capable of succeeding on the facts of the case. FAC |
Ms Ikuga was granted permission to appeal to the Court of Appeal, where her appeal was heard together with that of Ms Agyarko, and was likewise dismissed. FAC |
The judgment of the Court of Appeal RLC |
The Court of Appeal dismissed the appeals for reasons given in the judgment of Sales LJ, with which Longmore and Gloster LJJ agreed. RLC |
Sales LJ considered first an argument based on the phrase insurmountable obstacles, used in paragraph EX.1(b) of Appendix FM. RLC |
Sales LJ accepted that the phrase was intended to have the same meaning as in the jurisprudence of the European Court of Human Rights, where it originated. RLC |
It imposed a stringent test, illustrated by Jeunesse v The Netherlands (2015) 60 EHRR 17, para 117, where the court found that there were no insurmountable obstacles to the applicants family settling in Suriname, although they would experience a degree of hardship if forced to do so. RLC |
It was to be interpreted, both in the European case law and in the Rules, in a sensible and practical rather than a purely literal way. RLC |
On the facts of Ms Agyarkos case, the Secretary of States conclusion that there were no insurmountable obstacles to relocation, and that paragraph EX.1(b) was therefore not met, was not irrational: The statement made in Mrs Agyarkos letter of application of 26 September 2012 that she may be separated from her husband w... |
There was no witness statement from Mrs Agyarko or Mr Benette to explain what obstacles might exist. RLC |
The mere facts that Mr Benette is a British citizen, has lived all his life in the United Kingdom and has a job here - and hence might find it difficult and might be reluctant to relocate to Ghana to continue their family life there - could not constitute insurmountable obstacles to his doing so. RLC |
(para 25) On the facts of Ms Ikugas case, Sales LJ agreed with the Upper Tribunal judges assessment that the factors relied upon by Mrs Ikuga could not possibly persuade any decision-maker that there were insurmountable obstacles to family life continuing in Nigeria, within the meaning of [paragraph EX.1(b)] (para 50).... |
The alternative argument in each case was that the refusal to grant leave to remain outside the Rules was in breach of article 8. RLC |
It was argued that it was disproportionate to remove each of the appellants in circumstances where her husband or partner would have to follow her overseas if they wished to continue their family life together, especially when he was a British citizen; or, alternatively, because an out-of-country application for leave ... |
In relation to the latter argument, reliance was placed on the case of Chikwamba. RLC |
These arguments were rejected. RLC |
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