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A familiar nemesis: the Court of Appeal on “insurmountable obstacles”


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(Mudibo) v Secretary of State for the Home Department [2017] EWCA Civ 1949 is yet another decision of the Court of Appeal grappling with the provisions of those familiar nemeses, section 117B and the “insurmountable obstacles” test in EX.1 of Appendix FM. Much of the judgment is unremarkable with the usual mentioning of “precariousness”, “public interest” and “exceptional circumstances”.

That said, the facts differ from the usual cases in this area. Ms Mudibo was a Tanzanian national who had been residing in the UK since 2004, having initially entered as a visitor and never left. An application for leave to remain on the basis of family life with her husband was refused prior to the commencement of the Immigration Act 2014, thus depriving her of a right of appeal given her unlawful status. That decision was subject to judicial review proceedings in the Upper Tribunal. The present judgment was an appeal against the UT’s decision to refuse permission.

“Insurmountable obstacles” appeal summarily dismissed

The medical evidence was that Ms Mudibo’s husband suffered from HIV, reduced function in both hands and a spine compression fracture causing chronic back pain. All this meant he was unable to work.

Two grounds of appeal were taken:

  1. That the judge wrongly assumed that Ms Mudibo’s and her husband’s country of origin was the same, i.e. Tanzania.
  2. That the judge erred in considering whether the fact that her husband would lose access to the NHS and would not be able to support himself in Tanzania amounted to “insurmountable obstacles”.

Both arguments were summarily rejected. Cutting to the crux of the case, Lord Justice McCombe said:

In such circumstances, Mr Malik submitted, and I agree, that such error as there may have been as to Mr Ali’s country of origin could have had little bearing upon the real question of the proportionality of the decision to refuse the appellant’s application for LTR.

Amusingly, the court then resorted to simply quoting huge chunks of Lord Reed’s judgment in R (Agyarko) v SSHD [2017] UKSC 11. The court’s findings and conclusion form only the last three paragraphs of McCombe LJ’s judgment. He found that:

The obstacles to family life, which were said to be insurmountable, were Mr Ali’s inability to work, his inability to support himself in Tanzania and the relative standards of medical care for Mr Ali’s condition here and in Tanzania. It seems to me that the evidence on all these points was tenuous in the extreme. There was no evidence given by Mr Ali at all… There was no evidence from any quarter as to what obstacles there were to support for the couple in Tanzania and no explanation as to what the appellant’s own employment prospects were. The medical evidence was brief and relatively old and nothing was provided to establish a case of lack of necessary medication and/or medical care in Tanzania. As Mr Malik submitted, the claim to “insurmountable obstacles” amounted in reality to mere assertion.

This was despite the court noting that there were medical reports dating from 2010, 2012 and 2013, the latter date being the same year the application was refused after reconsideration by the Secretary of State. It seems surprising that evidence over a three-year period of serious medical conditions was deemed “tenuous in the extreme”.

Being able to work doesn’t necessarily mean being able to support a disabled husband

As I made reference to in my previous post, in cases involving family and private life arguments, the courts regularly reject arguments that the poor prospects of securing employment abroad would result in destitution. However, in an asylum context, even where the substantive protection claim arguments are rejected, the court has shown a willingness to examine whether such a person would have a realistic prospect of securing a livelihood upon return to their country of origin.

This case only re-affirms that there is no logical reason to distinguish between the two scenarios when they are essentially answering the exact same question: whether a person would face destitution upon return to their country of origin where they have poor prospects of employment in that country.

In the present case, no regard was given to the fact that while Ms Mudibo could work, it was a different matter whether her earning capacity would be such that she could work, run a household, care for and financially support her disabled husband in a country to which she would be returning after over a decade. Given a state’s positive obligations and duties under Article 3, any such consideration would necessarily require taking these factors into account for it to be effective and conclusive.

This is a point of wider significance which has yet to be properly addressed before the courts.

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Bilaal Shabbir

Bilaal is an Advocate at the Scottish Bar and practises in both Scotland and Jersey, focusing on public law, commercial dispute resolution and offshore trust litigation. He is a Panel Member on the Football Association’s (FA) National Serious Case Panel.