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Insurmountable obstacles finally bite the dust


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An insurmountable obstacle
An insurmountable obstacle

It was already clear but now it could not be clearer: you do not have to show that there are ‘insurmountable obstacles’ to your family joining you abroad in order to succeed in an Article 8 family life case. The new judgment in VW (Uganda) is crystal clear and very welcome, and I even managed to use it in court today.

As Lord Justice Sedley pointed out in LM (DRC) v Home Secretary there are very few obstacles that one literally cannot surmount, which would be far too high a test in this context. The Strasbourg and higher domestic authority was quite clear in saying that the test is a plain one of reasonableness. It is not an easy test to satisfy and a lot more than inconvenience or a little hardship is required, but it has certainly never been necessary to show an insurmountable obstacle. Unfortunately this did not prevent many immigration judges from imposing exactly this test and misconstuing earlier case law, and then the President of the tribunal in VW (from which this was the appeal) suggested that ‘insurmountable obstacles’ and ‘reasonableness’ are one and the same.

With respect, the words of the former test obviously impose something more than an enquiry into what is reasonable. They are clearly what lawyers call a gloss. It is a shame that the former President’s analysis in Bakir was not heeded by more immigration and senior immigration judges.

All that has been sorted out now, thankfully, and the tribunal has been overturned on appeal again on another significant issue where a deliberately conservative line was followed.

The judgment in VW is also significant in focussing in on the welfare of the affected child. A report from an Independent Social Worker was considered and considerable weight seems to have been attached to it: the court decided to allow the appeal outright rather than remitting it. ISWs should routinely be instructed in cases involving children so that their best interests are actually considered, as is required by Uner v Netherlands and Beoku-Betts, rather than being swept under the carpet.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


24 Responses

  1. FM – To me as a layperson, the whole misinterpretation smacks a bit of having people in a position, ruling on points of law who are grossly inexperienced in their interpretation. Does one have to come from a legal background to be an IJ or adjudicator?

    Of course there’s always this method as employed by the Chinese: http://www.economist.com/blogs/gulliver/2009/01/hows_my_immigration_service.cfm it could lead to an x-Factor-esque elimination of refuseniks :-)

  2. My partner’s out of country appeal has been allowed under article 8.We don’t have children,we’re not married yet and it could have been argued that there’s nothing legally stopping me flying to be with her abroad. There would however have been considerable awkwardness on my side(the uk sponsor).
    Is it likely that these recent determinations have helped us here,or have I just been extremely fortunate(for which i’m most grateful !)?

    1. That’s great news – but watch out for a Home Office appeal. Only 1 in 10 allowed cases are appealed, apparently, but it tends to be asylum and human rights cases where it happens. The Home Office just won’t take these things lying down, then claimant representatives get blamed by idiot ministers for stringing out the appeals process.

      It is of course impossible to know what was in the mind of a given immigration judge – particularly without reading the determination! However, almost all of the higher court case law has been going in favour of claimants on human rights issues since mid 2008.

  3. A

    Well done – you must be very relieved.
    Article 8 right to set up family life I guess. Thats the one the COA for marriage originally fell foul of.

    Are you now able to say where she’s from?

    I must admit I didn’t feel your case was that strong, so your guess is as good as mine. Leniant judge, your genuiness, good lawyer, the fact it was out of country, may all have contributed.
    How was the HOPO during the appeal, and what was the judges name?

  4. FM, I recently (08/01/09) wen for a hearing at the AIT in Birmingham, my appeal has been allowed under RN Zim; the home office can appeal (they have until friday 23rd). It says they can appeal on grounds of error of law, it’s been fingers crossed for me and my girlfriend since last friday when we found out.
    Is there anything you can say to perk me up? :-)
    p.s. we missed you, hope you had a spiffing holiday!

  5. Hi Freemovement and Mr T. Is it correct that the H.O have five working days to appeal against a determination on an error of law basis? I understand the appellant has 28 days when out of country. If it’s five days then I think the determination is safe now,as a few weeks have passed(mercifully!)
    The appellant is south african.One of a relatively large and proud Zulu family,so I’ve got a new language to learn! The H.O.P.O and the judge were both fine,and being honest and polite did seem to help our cause.
    Interestingly the lady was banned under rule 320 when it was first introduced last April.The judge upheld this part,as it was in place at the time of refusal.I’d rather hoped that it would no longer stand due to (a) the fact it was removed in June for spouses,fiances,family members etc and (b) it was retrospectively removed on refusals made during April and May if the appellant came forward to ask for a reconsideration.
    The temporary inclusion of this re consideration instruction was removed from the Entry Clearance rules by the time of our appeal I believe.So either the judge may not have been aware it ever existed,or he may not have wished to go against the new 320 7b rules at any cost?
    Maybe the judge was right to uphold it and I’m certainly no expert.However i’d assumed the instruction to reconsider refusals from April and May rather inferred that it was revoked retrospectively and would no longer stand.
    The result however was a rather shakey,but nevertheless positive determination which we are both very grateful for :-)

  6. A

    An interesting read

    She is not related to the African prince on BBC’s Undercover Princes by any chance?

    South Africans I believe are still non-visa nationals, although the UK government has several countries including SA on its “to be reveiwed” list. I’m not sure if i’m bang up to date on this.

    Your S320 comments are interesting, as I recently asked a lawyer friend about the s7B 10 year ban and s7C concession list. He said he was unsure, but thought that s7C had not made it into law. I think we may need FM’s clarification on this.

    Is the wedding taking place in the UK then? If so, the non-visa national status will be important as you can easily have your inlaws attend your wedding under the 90 day visitor visa waiver. I think getting them through customs carrying spears and wedding presents may prove more problematic.

  7. Many thanks D.P. It’s all been an intriguing insight into the mechanism of the immigration system..or would have been had it not put life on hold for a year :-)
    Mr T, I’m not sure if she’s related to any prince as i’ve never seen the programme,though she does have the looks of an african queen!
    To be honest we’ve struggled so hard to remain together and gain clearance that the wedding now seems more like an urgent formality,as part of the proceedings,rather than the grand occasion it should be.Hopefully that will change later but at the moment we appreciate just getting the clearance,as she did breach the rules previously.I’m not sure if her family will make it accross even .It’s certainly far from the norm dating a foreign national!

  8. I am (fairly) certain SA nationals will shortly be added to the control list.

    The 90 day visa waiver is the US scheme (although this has being tightened for waiver nationals via a pre flight on line registration system – I cant see this being dropped post Obama inauguration).

    Visit visas under the UK Immigration rules give up to six months leave (rule 41 hc395)

    Don’t assume that because the deadline has passed and that you have heard nothing that the HO have not appealed – instead you should call the AIT on 0845 6000 877 and ask them.

    It would surprise me that as many as one in ten (of all allowed appeals) are appealed by the HO, this however is based on personal experience as versus having seen the data on this. The priority is Asylum, and above all Criminal Deportation cases.


  9. LondonHOPO – I had a poke around the unreported section of the Ait website, just had a look at some recent cases. I see what you mean about those above forcing cases back in for reconsideration. Even in many cases it appeared the HOPO was attempting to re-argue the facts of the case post the factual findings of the case.

  10. DP,

    The point I was making was actually, in terms of volume (when you take in to account visit visas, working holiday makers, student applications and all other such small fry) it is the minority that are appealed by the HO.

    In terms of re-arguing points already considered, this may be required if the entire decision was tainted by error(s) in law. Both sides, not just the HO will seek to preserve findings which support their case. It’s the nature of the beast.

    In any event, the case of DK Serbia has given greater clarity in this area.

    (See para 25 in particular)


  11. Hi London H.O.P.O.I understand the A.I.T take a while to process an error of law appeal.Howeveri’m merely the sponsor and therefore they couldn’t inform me due to the data protection act.Rather than trouble the solicitor(rep)i’ll just sit it out and see.
    In the judge’s own words ours was an unusual case and I sincerely hope that they don’t choose to dispute it.The substantive requirements of the visa were fully met.It was just the intention which was called into question.
    The part which I find bizarre is that nobody spoke a single word to me until the day in court,months after the refusal and after our proposed wedding day had passed.
    Surely a verbal interview with the uk sponsor should be mandatory at the time of application,as they are likely to be the person reasoning with the immigration judge 9 months later.Personally I only told the judge exactly what i would have told the clearance officer,had they contacted me 9 months earlier.The resulting difference being a long wait for us and considerable cost to uk visas for the hearing.
    Worse still the H.O bundle was sprung on us at the last minute containing requests by the clearance officer not to consider evidence of our relationship after the date of refusal.This called my honesty into question,as well as the appellant.It is hard not to take it personally,particularly from someone you’ve never even spoken to!
    The whole process has left rather a bitter taste,which is unfortunate for all concerned really.

  12. A

    The good news is the HO will probably not refuse her FLR claim after you are married, nor her ILR claim two years later, nor her Citizenship a year after ILR. The bad news is they will take the money off you, nearly £2,000; and thats on top of the £2,000 you have at least paid for the visa that was refused, and your lawyers fees for the appeal. (you probably won’t need a lawyer from now on)

    Wait until you see social security for an NI number for her; well at least its free, but the interrogation continues.
    I guess you’ll soon wish you went the Eire route, which is when you joined in the blogging if I remember well.

    -the ECO said “not to consider evidence of our relationship after the date of refusal”; tut tut, another immigration official who’s job is to uphold immigration laws, breaking them. This possibly upset the judge, which is why he came down on your side.

  13. I think i read that the appeal focuses on the evidence and facts at the time of the application.In which case the official was maybe within his/her rights to ask the judge to discredit further evidence.
    The problem is the request implies that any new evidence of intervening devotion could have been fabricated by us to prove a relationship where,in their eyes,no relationship existed at the time of refusal.And further into the explanatory statement the clearance officer openly accused both myself and the appellant of deception.It all seemed a bit harsh and rather personal from someone i’ve never met or spoken to!!
    Perhaps it’s just the nature of the beast though,as london hopo says.The judge and P.O were decent folk too at least.
    Nice to know,mr T,that future obstacles may not be ‘insurmountable’,even if a little costly :-)

  14. A,

    Yes, if an appeal has been lodged by the HO, and a Senior Immigration Judge has granted permission to appeal, there will be a delay – three months minimum, in my experience.

    I’m surprised / disappointed that the Loughborough call centre took that line with you, as you are clearly a party to the appeal and should have a right to know the position, you could try calling the PO in question or his / her office – I cant guarantee that they would be willing to assist, but there is no harm in asking.

    With regards the late service of the ECO’s bundle, this can happen for two reasons; 1. The post sends the bundle late / never gets round to serving the bundle, 2. The post does serve the bundle on the AIT, but they in turn to not send it to the Presenting Officers Unit and or the reps.

    The first situation is exacerbated by the fact that UK Visas (a government department) put great pressure on the Posts to process an amount of applications which is beyond their maximum capacity (so that UK visas make more money), this in turn (some times) leads to rushed / bizarrely reasoned decisions, and in and turn commensurately high allowed appeal rates.

    In the second scenario, the reps and PO’s bundles lie on the AIT’s file until the day of hearing, I have lost count of the times I have been handed down from the bench an ECO bundle stamped “PO Copy”.

    In terms of your prospects of the allowed appeal being overturned, out of country allowed appeals are (generally) not a priority for the HO staff that consider these matters, unless there is a glaring error in law, or in fact leading to an error in law – they will usually accept the Judge’s decision.

    In terms of, what we in the trade, call the “relevant date”, in out of country matters this is the date of decision – however intervening devotion (i.e. ongoing evidence of the existence of the relationship) is a material factor, up to and including the date of appeal hearing, if as you say the ECO disagreed here, they would be wrong.

    Were I in your shoes, I would take it personally too – however, you have to understand that many seek to abuse the system, sometimes evidence has to be tested in court, sometimes PO’s have to ask very direct and personal questions, FM has described this form of questioning as “insulting and offensive” I disagree – the testing of evidence is vital in order that the Judge can reach a sound and reasoned decision.


    1. Thanks, LondonHOPO. There are a couple of interesting legal issues here. One is the date of decision and date of evidence – I might do a short post on that shortly. ECOs routinely misunderstand the law on this issue, although I can see why they don’t like evidence that post-dates the decision. The other is ‘who is the appellant?’ This is a real headache for immigration lawyers – is our client the appellant or the sponsor, and what if there is a conflict of interest, as in a forced marriage case? This issue does arise from time to time and as far as I can see there is no easy answer. A’s problem with getting information is an interesting one, and in some ways the response of the AIT is commendable – even if a pain!

  15. LondonHOPO

    Thanks for a detailed insight into the workings of the appeals system for us on the other side of the fence.

    With A, he says:
    “the clearance officer openly accused both myself and the appeallant of deception”

    You say that:
    “testing of evidence is vital in order that the Judge can reach a sound and reasoned decision”

    I think most people agree with you, but where we differ is the methodolgy. If the ECO is accusing the appealant of deception where there is evidence of such, OK.
    However, if we assume here that there wasn’t evidence for deception, what may happen. A person of deception, having plenty of experience of such questions, would know how to deceive the Judge with his well rehearsed responses.
    The honest appeallant would never have had such accusations thrown at them before, and the judge could take their confusion and delay in answering as guilt.
    In other words, the technique has an accuracy rate lower than if the judge had just tossed a coin.

    The US has a similar technique to coin tossing called the “Green Card Lottery”. Saves years of training PO’s in dubious methodogy, costs very little to run, and upsets no-one.

  16. I’m sure I remember phoning the A.I.T earlier in the year with no problems.However there seemed to have been a tightening up nearer the time of our appeal.They did inform me that if the appellant provides written permission,they could give me an update on things.Or they could give info to the representative,who in our case was the solicitor,rather than myself.
    It did feel a bit strange,as the solicitor used my address on the appeal form as correspondence address for the appellant.So although i had received the determination through my door on my partner’s behalf,the a.i.t still couldn’t tell me anything under the data protection act! It seems a bit silly and frustrating,but understandably the right and proper procedure i’m sure.
    With regards to the deception,this was merely deduced from written evidence supplied unwittingly by me after the refusal.It was misconstrued and i’m sure the judge could see that.
    So essentially the officer tried to use post application evidence against us,while asking for ours to be discredited.
    It must be difficult abroad when faced with a good strong application for a foreign national who previously flouted the rules.The temptation to misconstrue things and pick holes may be strong if the officer takes exception to it.Interviewing the uk resident would certainly have been counter productive as they can put things straight more readily,as happened in court later.(Incidently i’m intrigued to see if the airport immigration officials wish to speak to me when/if she reaches our shores!)
    I may be cynical and risk being shot down in flames,but my honest opinion is that they just did not wish to give clearance come hell or high water.
    As london hopo said,people do play the system,and it’s best not to take things to heart.But it is extremely frustrating when you’re the uk sponsor on the receiving end.

  17. I was just wondering if you could shed some light as to how long it takes the administrative court to process section 103 appeals for re-consideration of an SIJ`s refusal to order re-consideration. First we were told that it is presently taking 6months and then the admin court said the particular case, though only lodged in january had been put before a judge last week, but they dont know when the results would be back.

    Secondly, is that the end of the appeal process? Isnt there a mechanism to go to the court of appeal from a determination of High court (admin court that is)?


    1. Short answer, I don’t know. Regarding appeals, that is indeed the end of the line, unless you fancy an application to Strasbourg.