What are insurmountable obstacles?

Insurmountable obstacles are the very significant difficulties a UK-based partner and an applicant would face in continuing their family life together outside the UK, which could not be overcome or would cause very serious hardship. The test is set out in paragraphs EX.1 and EX.2 of Appendix FM of the Immigration Rules.

How insurmountable obstacles work

Insurmountable obstacles appear in paragraph EX.1(b) of Appendix FM of the Immigration Rules. The paragraph applies when the applicant has a genuine and subsisting relationship with a partner who is in the UK and who is a British citizen, is settled in the UK or has protection status. A partner with limited leave under Appendix EU or Appendix ECAA, or with permission as a stateless person, is also covered. In every case there must be insurmountable obstacles to family life with that partner continuing outside the UK.^{[1]Home Office, Immigration Rules Appendix FM: family members}

Paragraph EX.2 gives the definition. Insurmountable obstacles are the very significant difficulties which the applicant or their partner would face 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.^{[1]Home Office, Immigration Rules Appendix FM: family members}

The test sits in a section of Appendix FM headed as an exception to certain eligibility requirements for leave to remain as a partner or parent. If EX.1 applies, the financial requirement, the accommodation requirement and the English language requirement do not have to be met, and the restriction on applicants who are in breach of immigration laws does not apply.^{[1]Home Office, Immigration Rules Appendix FM: family members} A person who qualifies in this way is granted on the 10-year route. See five-year and ten-year partner routes.^{[1]Home Office, Immigration Rules Appendix FM: family members}

The two forms of insurmountable obstacle

Home Office caseworker guidance says an insurmountable obstacle can take two forms.^{[2]UK Visas and Immigration, Family life and exceptional circumstances: caseworker guidance}

The guidance tells caseworkers to look at the individual circumstances of the applicant and their partner. It says the test is different from, and more stringent than, whether it is reasonable to expect the partner to join the applicant overseas. A significant degree of hardship or inconvenience does not amount to an insurmountable obstacle.^{[2]UK Visas and Immigration, Family life and exceptional circumstances: caseworker guidance}

Factors the guidance lists

The guidance says relevant factors include but are not limited to the following.^{[2]UK Visas and Immigration, Family life and exceptional circumstances: caseworker guidance}

• Ability to enter and stay in another country. The onus is on the applicant to show it is not feasible for the family to live in another country. A mere wish or preference to live in the UK is not enough.
• Serious cultural barriers. A barrier must affect fundamental rights, be one that cannot reasonably be overcome and present a very serious obstacle to family life in that country. The guidance looks at the position in practice, not only what the law of the country says.
• Disability or serious illness. Independent medical evidence could show that a condition needing ongoing treatment would cause very serious hardship, for example because adequate health care is not available.
• Absence of governance or security. This can apply where civil society has broken down across the whole country.

The guidance also lists situations that would not usually amount to an insurmountable obstacle. These are lack of knowledge of the local language, separation from extended family members and a drop in quality of life such as less income or different housing, unless there is particular hardship or other exceptional factors.^{[2]UK Visas and Immigration, Family life and exceptional circumstances: caseworker guidance}

Example

Anil is on a partner visa. His wife, Sara, is a British citizen. They would like to continue their family life in Anil’s home country. Sara has lived in the UK all her life, works here and speaks only English. She would find a move very hard.

Home Office guidance uses a very similar situation to explain the test. It says a British partner in that position may not wish to relocate and it may be very difficult for them, but a significant degree of hardship or inconvenience does not amount to an insurmountable obstacle.^{[2]UK Visas and Immigration, Family life and exceptional circumstances: caseworker guidance} The example shows where the line is drawn. It does not say how any case will be decided. Each case turns on its own evidence.

What people get wrong

Many couples assume that a British partner who would rather stay in the UK has met the test. The Home Office guidance says a mere wish, desire or preference to live in the UK is not sufficient, and that it is for the applicant to show the obstacle with evidence.

That wording comes from the Home Office caseworker guidance.^{[2]UK Visas and Immigration, Family life and exceptional circumstances: caseworker guidance}

The second mistake is to confuse this test with the question of what is reasonable for a child. Paragraph EX.1(a) deals with a child, and asks whether it would be reasonable to expect the child to leave the UK. Paragraph EX.1(b) deals with a partner, and uses the higher standard described above.^{[1]Home Office, Immigration Rules Appendix FM: family members[2]UK Visas and Immigration, Family life and exceptional circumstances: caseworker guidance}

The bottom line

Insurmountable obstacles is a defined test in paragraph EX.2 of Appendix FM. It asks for very significant difficulties that could not be overcome or would entail very serious hardship. Preference, inconvenience and a lower standard of living are not enough on their own. The applicant must prove the obstacle, and the rule leads to a 10-year route when it is met.