R (on the application of Agyarko & Ikuga) v Secretary of State for the Home Department

[2017] UKSC 11

UKSC 2015/0129
R (on the application of Agyarko) (Appellant) v Secretary of State for the Home Department (Respondent)

UKSC 2015/0130
R (on the application of Ikuga) (Appellant) v Secretary of State for the Home Department (Respondent)

On appeal from the Court of Appeal (Civil Division) (England and Wales)

The issue in these linked appeals is whether the requirement that an applicant for leave to remain in the UK, who formed a relationship with a British citizen while present in the UK unlawfully, must demonstrate either "insurmountable obstacles" to that relationship continuing in a different country or "exceptional circumstances" to justify consideration outside the scope of the Immigration Rules, is compliant with art.8 ECHR. Both appellants came to the UK, overstayed their visas, and subsequently formed relationships with British citizens. They submitted applications for leave to remain on the basis that those relationships were protected by their right to respect for their family life under art.8 ECHR. The Secretary of State refused their applications because they could neither satisfy the requirements of Appendix FM of the Immigration Rules, which governs the grant of leave to family members, nor establish that compliance with art.8 would mandate the consideration of leave outside the scope of the Immigration Rules. Applicants whose family life with their partners is "precarious" (i.e. commenced at a time when their presence in the UK breached immigration law) will not be granted leave under Appendix FM unless they can demonstrate "insurmountable obstacles" to that family life continuing elsewhere. The Secretary of State has a residual discretion to grant leave to applicants who do not satisfy the requirements of the Immigration Rules, but will only do so where there are "exceptional circumstances" such that refusal of leave would amount to a disproportionate interference with art.8 rights.
The Supreme Court unanimously dismisses the appeals.