The term "insurmountable obstacles" is used when an applicant submits an application for leave to remain in the United Kingdom as the partner of a British Citizen or settled person, and they do not meet all of the requirements of the Immigration Rules. It is important to note that within Appendix FM, exception EX.1 is critical, as it allows an applicant to still obtain leave to remain under Article 8 of the European Convention on Human Rights (ECHR), even if the standard Rules are not met.

Understanding Exception EX.1

Exception EX.1 provides two distinct pathways for applicants relying on family life under Article 8:

EX.1(a): Parental Relationship with a Child

This exception applies where the applicant has a genuine and subsisting parental relationship with a child who:

• Is under the age of 18,
• Lives in the UK, and
• Is a British Citizen or has lived in the UK for at least 7 years,
• And it would not be reasonable to expect the child to leave the United Kingdom.

EX.1(b): Insurmountable Obstacles (Partner Route)

This exception is the focus of this article. It applies where:

• The applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or has leave with refugee status or humanitarian protection,
• And there are insurmountable obstacles to the family life continuing outside the UK.

Defining "Insurmountable Obstacles": EX.2

Immediately following EX.1(b), exception EX.2 provides the statutory definition and starting point for assessment:

"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."

Common Misconceptions

In practice, many applicants mistakenly believe that factors such as:

• Being a British Citizen,
• Having extended family members in the UK, or
• Holding secure employment

automatically constitute insurmountable obstacles. This is not correct. The test is deliberately stringent and requires evidence of very significant difficulties that cannot be overcome.

What Qualifies as Insurmountable Obstacles?

While the Home Office guidance provides a framework, the assessment is highly fact-specific. Potential examples may include:

• Legal barriers to entry: Inability of the British/settled partner to obtain entry clearance to the country of relocation due to immigration restrictions.
• Health considerations: Long-term illness or disability of either partner that cannot be adequately managed or treated in the destination country.
• Religious or social persecution: Risk of harm, discrimination, or ostracisation due to faith, belief, or social status in the country of return.
• Inter-faith or same-sex relationships: Where the country of relocation does not legally recognise or socially accepts the relationship, creating serious hardship or risk.
• Cultural or linguistic barriers: Extreme difficulties in integration that would severely impact family life, particularly where children are involved.

The Tribunal Assessment Process

In appeals where the couple has no children, the Tribunal's starting point is twofold:

1. Does the appellant meet the requirements of the Immigration Rules?
2. If not, are there insurmountable obstacles to family life continuing outside the UK?

It is therefore critical that legal representatives carefully draft representations and witness statements, providing detailed, evidence-based submissions on the specific circumstances that would arise upon relocation.

The Impact of R (Agyarko) [2017] UKSC 11

The Supreme Court's landmark decision in R (Agyarko) v Secretary of State for the Home Department clarified the legal framework:

• The Immigration Rules' "insurmountable obstacles" test is lawful and compatible with Article 8 ECHR.
• The Home Office may lawfully apply this stringent test to applications within the Rules.
• Crucially, even if the insurmountable obstacles test is not met, decision-makers must still consider whether exceptional circumstances exist outside the Rules that would warrant granting leave to remain on Article 8 grounds.

This means that a refusal under EX.1(b) is not necessarily the end of the road: a separate assessment of exceptional circumstances must follow.

Practical Advice for Applicants

• Seek specialist legal advice early: The complexity of the test demands expert navigation of case law, policy guidance, and evidential requirements.
• Gather comprehensive evidence: Medical reports, country expert opinions, legal advice on foreign immigration law, and personal statements can all strengthen a claim.
• Address both partners' circumstances: The test considers difficulties faced by either the applicant or their partner.
• Consider the "exceptional circumstances" fallback: Even if EX.1(b) is not satisfied, ensure submissions address whether Article 8 engagement outside the Rules warrants a grant of leave.

How We Can Help

At Wright Justice Solicitors, our Immigration and Asylum Department provides expert representation in complex Article 8 cases, including:

• Applications and appeals relying on exception EX.1(b) and the insurmountable obstacles test
• Submissions on exceptional circumstances outside the Immigration Rules
• Evidence gathering, including country expert reports and medical assessments
• Strategic advice following the Agyarko judgment and subsequent case law

Contact Mr. Zameer Chaudhry, Senior Solicitor and Head of Department, on 0121 772 4512 for a confidential consultation regarding your case.

References

1. R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11
2. Appendix FM of the Immigration Rules (Exceptions EX.1 and EX.2)
3. European Convention on Human Rights, Article 8: Right to respect for private and family life
4. Home Office Guidance: "Family life (as a partner or parent), private life and exceptional circumstances" (Appendix FM Section EC-PL)