The case of Lal v Secretary of State looks at an important question in UK immigration law: when does refusing a spouse’s application to stay in the UK breach their right to family life under Article 8 of the European Convention on Human Rights?
Background
The appellant, Ms Cathrine Lal, is an Indian national born in 1984. She arrived in the UK on 24 January 2011 with entry clearance as a Tier 4 (General) Student valid until 10 January 2013. Her leave to remain was subsequently extended until 19 April 2015. On 12 December 2014, Ms Lal married a British citizen, Mr Keith Wilmshurst.
On 17 April 2015 she applied for leave to remain in the UK on the basis of her relationship with him. The application was initially refused by the Secretary of State. The Secretary of State did not accept that the relationship between Ms Lal and her husband was genuine and subsisting and that they intended to live together permanently in the UK. The Secretary of State accordingly concluded that Ms Lal did not meet the requirements for 5-year route and because they were not satisfied that the relationship was genuine and subsisting, they concluded that paragraph EX.1. did not apply in her case. Ms Lal subsequently lodged an appeal against the decision.
The First-tier Tribunal found the marriage genuine and held that her husband’s inability to cope in a foreign country (particularly the heat) due to advanced age of 73 years old, created insurmountable obstacles to relocation. The Upper Tribunal overturned this, but the Court of Appeal held that the Upper Tribunal erred in law by failing to properly assess hardship objectively, cumulatively, and proportionately under Article 8. The court emphasised that insurmountable obstacles require objective assessment and that family life must be fairly balanced against immigration control. The case was remitted to the Secretary of State for reconsideration.
The Supreme Court confirmed in Agyarko [2017] UKSC 11 that insurmountable obstacles is a stringent test requiring an applicant to show serious hardship. In this case, there were insurmountable obstacles for Mr Keith to relocate to India with Ms Lal. Mr Malik submitted that “insurmountable obstacles”, as that phrase is defined in EX. 2. of Appendix FM, 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.
- Age- 73 years old
- Health/Climate- Sensitivity to heat
- Family ties – Strong family ties in the UK
- Living conditions
- Ability to mitigate hardship – Lifelong residence in the UK, is it reasonable for someone at the age of 73 years old to relocate to a place where he has never lived in previously?
In this case, Mr Wilmshurst has lived all his life in the UK and that all his friends and family (including his four children and six grandchildren) are in the UK. Mr Wilmshurst would face very significant difficulty in living in India because of his inability to cope with heat. As a result, it would be difficult to Mr Wilmshurst to survive in a foreign country where he has never lived in, and also adding to the fact that he is 73 years old and his inability to cope with the heat in India. To decide whether the obstacle would entail very serious hardship for Mr Wilmshurst and was for that reason “insurmountable”, it was necessary in to examine the facts in more detail and to consider questions such as these:
- if the couple had to move to India, where in India could they reasonably be expected to live? What are the average temperatures in that part of India during different periods of the year? Are there steps which could reasonably be taken to mitigate the heat during hot weather, such as air conditioning, and how adequate would such steps be to meet the difficulty? Are there any cooler places in which it would be praticable for Mr Wilmshurst and Ms Lal to live for all or part of the year? The ultimate question is whether, in all the circumstances, the climate would entail not merely a significant degree of hardship or inconvenience for Mr Wilmshurst but “very serious hardship”.
- These questions should be assessed when determining whether or not an obstacle is insurmountable, rather than a subjective factor or mere inconvenience, and whether or not the obstacle would make it impossible for the couple to continue family life outside of the UK.
Since Ms Lal’s application for leave to remain was refused, and indeed since her case was considered by the Upper Tribunal, there has been a material change of circumstances which– as discussed in the GM (Sri Lanka) case at para 7– must now be taken into account.
- Ms Lal and her husband have a daughter who is a British citizen, born on 08 June 2019. Due to the change of circumstances, we now take into account the child’s best interests as a primary consideration, it wold not be reasonable to expect the child to leave the UK, then paragraph EX.1. applies without the need to show insurmountable obstacles to continuing family life outside the UK and, pursuant to section 117B(6), the public interest does not require Ms Lal’s removal from the UK.
- Is it reasonable to the child to leave the UK with Ms Lal? What could happen if they were to be separated? Is it reasonable for Ms Lala’s husband to look after her child without the presence of Ms Lal? How would this impact her daughter, her husband, and the entire family respectively? How would Ms Lal’s absence affect the development of the child? Similar questions should be assessed when dealing questions to establish insurmountable obstacles to continuing family life outside the UK.
Why This Case Matters
This case highlights several important principles:
“Insurmountable obstacles” is a high threshold. Hardship must be assessed objectively and cumulatively. Immigration decisions must strike a fair balance between immigration control and the right to family life. Where removal would cause very serious hardship or would not be reasonable for a British child, the law provides protection.
