R (on the applications of Agyarko and Ikuga) v Secretary of State for the Home Department [2017] UKSC 11

Two foreign nationals who overstayed their visas and formed relationships with British citizens were refused leave to remain. The Supreme Court dismissed their appeals, upholding the 'insurmountable obstacles' and 'exceptional circumstances' tests in the Immigration Rules as compatible with Article 8 ECHR.

Facts

The appeals concerned two foreign nationals residing unlawfully in the UK who applied for leave to remain as partners of British citizens. Ms Agyarko, a Ghanaian national, entered the UK as a visitor in 2003 and overstayed. She subsequently married Mr Benette, a naturalised British citizen, by proxy under Ghanaian customary law in 2012. Ms Ikuga, a Nigerian national, entered as a visitor in 2008 and overstayed. She entered into a relationship with Mr Ijiekhuamhen, a British citizen, and was undergoing fertility treatment in the UK.

Both applications were refused by the Secretary of State under Appendix FM of the Immigration Rules and on the basis that no ‘exceptional circumstances’ justified leave outside the Rules. Their applications for judicial review and subsequent appeals to the Court of Appeal were dismissed.

Issues

Lord Reed identified the principal issues as: (1) the correct approach to applying Article 8 ECHR to the removal of non-settled migrants; (2) the proper interpretation of ‘insurmountable obstacles’ in paragraph EX.1(b) of Appendix FM, and whether it is compatible with Article 8; (3) the meaning and role of ‘precariousness’ in the Article 8 assessment; (4) whether the ‘exceptional circumstances’ test for leave outside the Rules was lawful; (5) whether Appendix FM was unlawful under EU law (particularly following Ruiz Zambrano) or under section 1(1) of the Immigration Act 1971; and (6) whether the Secretary of State’s decisions were lawful on the facts.

Arguments

Appellants

The appellants argued that the ‘insurmountable obstacles’ test was too stringent to be compatible with Article 8, since the Strasbourg court treats it merely as a relevant factor rather than a requirement. They contended that requiring ‘exceptional circumstances’ for leave outside the Rules was inconsistent with the House of Lords’ decision in Huang. They also submitted that the Rules unlawfully pressured British citizens to relocate outside the EU, contrary to Ruiz Zambrano, and infringed the right under section 1(1) of the 1971 Act.

Respondent

The Secretary of State argued that refusal of leave to remain to persons unlawfully resident should be analysed as raising the question whether the state was under a positive obligation to permit them to remain. The Rules reflected a legitimate policy assessment, approved by Parliament, of how Article 8 rights should be balanced against the public interest in immigration control.

Judgment

Nature of the Rules

Lord Reed explained that the Rules are not a summary of Strasbourg case law but statements of practice approved by Parliament, reflecting the Secretary of State’s policy on balancing Article 8 rights against competing public interests. The Rules are designed to operate on the basis that decisions taken under them are compatible with Article 8 in all but exceptional cases.

Insurmountable obstacles

The court held that ‘insurmountable obstacles’ should be understood in a practical and realistic sense, not literally. The definition introduced in paragraph EX.2 in 2014 — ‘very significant difficulties which would be faced by the applicant or their partner… which could not be overcome or would entail very serious hardship’ — was consistent with the Strasbourg jurisprudence and should be applied to the pre-2014 Rules. While the test is stringent, it is not incompatible with Article 8, because the Rules are qualified by the discretion to grant leave outside the Rules in exceptional circumstances.

Precariousness

Following Jeunesse v Netherlands, where family life is established when immigration status is precarious, it will likely only be in exceptional circumstances that removal violates Article 8. Precariousness is not a preliminary hurdle but affects the weight given to family life in the balancing exercise. The cogency of the public interest may diminish with protracted delay in enforcing immigration control (citing EB (Kosovo)).

Exceptional circumstances

The court held that the ‘exceptional circumstances’ test, as defined in the Instructions to mean circumstances where refusal would result in ‘unjustifiably harsh consequences’ such that refusal would be disproportionate, was not a test of exceptionality in the sense rejected in Huang. Following MF (Nigeria), the term refers to the strength of claim required to outweigh the public interest, applying a proportionality test. The Instructions expressly state that ‘exceptional’ does not mean ‘unusual’ or ‘unique’.

EU law

The Ruiz Zambrano challenge failed. Following Dereci, Iida, and CS, Article 20 TFEU only confers derived rights on third-country nationals where refusal would force the Union citizen to leave EU territory altogether. In the present cases, the British partners would not be forced to leave the EU.

Application to the facts

In Ms Agyarko’s case, no evidence supported a conclusion that there were insurmountable obstacles to relocation in Ghana, nor any exceptional circumstances. The use of standardised reasoning in the decision was not inherently objectionable provided reasons adequately explained the decision. In Ms Ikuga’s case, although the Secretary of State had erred regarding cohabitation, the Upper Tribunal was entitled to conclude that the decision would inevitably be the same on reconsideration: full-time employment of her partner in the UK and ongoing fertility treatment could not constitute insurmountable obstacles or exceptional circumstances.

Implications

The decision endorses the Secretary of State’s restructured approach to Article 8 in the immigration context, confirming that the post-2012 Rules and Instructions are, in principle, compatible with Article 8. The ‘insurmountable obstacles’ test is stringent but realistic, requiring very significant difficulties that cannot be overcome without very serious hardship. The ‘exceptional circumstances’ test outside the Rules is essentially a proportionality assessment focused on whether refusal would produce unjustifiably harsh consequences.

The judgment reinforces that, where family life is formed during unlawful or precarious presence, a very strong or compelling claim is generally required to outweigh the public interest in immigration control. However, factors such as protracted state delay (per EB (Kosovo)) or scenarios falling within Chikwamba (where an out-of-country application would inevitably succeed) may diminish the public interest in removal.

The decision is significant for immigration practitioners and applicants because it clarifies the legal framework against which Article 8 partner applications must be assessed. It also confirms the limited reach of Ruiz Zambrano: derived rights arise only where refusal would force the Union citizen to leave the EU entirely. The court recognised that decisions applying the Rules in individual cases must still be independently assessed for Article 8 compliance, leaving scope for case-by-case challenge while affording considerable weight to the policy framework endorsed by Parliament.

Verdict: Both appeals dismissed. The Supreme Court held that the ‘insurmountable obstacles’ test in paragraph EX.1(b) of Appendix FM and the ‘exceptional circumstances’ test in the Instructions were compatible with Article 8 ECHR, and that the Secretary of State’s decisions refusing leave to remain to both appellants were lawful.

Source: R (on the applications of Agyarko and Ikuga) v Secretary of State for the Home Department [2017] UKSC 11