How are "insurmountable obstacles" defined?

[gumshoe]

I'm a British born UK citizen and my girlfriend is from outside of the EU. We're not married yet but we're planning on it. She's just completed a master's degree in the UK and her visa expires in April.

I have an incurable autoimmune disease and require a lot of very expensive medication (the wholesale price for the NHS is about £17160 a year) in order to simply not be hospitalised constantly. It's a biologic treatment, and if I have any appreciable gaps in treatment I will develop antibodies to it, rendering it ineffective. This would be a huge disaster as it's the last available treatment that works for me.

It's "technically" available in her country of origin, although obviously there's a crippling cost involved. On top of which, I'd only be eligible for medical treatment there if I held a job, and I haven't had a period of good health long enough to work for the last 10 years.

I have in the past claimed DLA, although I let it lapse and attempted to return to university to finish my education. I'd be prepared to quit university and go through the indignity of the endless DLA appeals again in order to waive the financial requirement if I have to, but is it necessary? It's just not a realistic prospect for me to leave the UK.

[Obie]

In determining whether there are “insurmountable obstacles”, the decision maker should consider the seriousness of the difficulties which the applicant and their partner would face in continuing their family life outside the UK, and whether they entail something that could not (or could not reasonably be expected to) be overcome, even with a degree of hardship for one or more of the individuals concerned.The decision maker should look at whether there is an inability to live in the country concerned. The focus should also be on the family life which would be enjoyed in the country to which the applicant would be returned, not a comparison to the life they would enjoy were they to remain in the UK.Lack of knowledge of a language spoken in the country in which the couple would be required to live would not usually amount to an insurmountable obstacle. It is reasonable to conclude that the couple must have been conversing in a commonlyunderstood language whilst in the UK. Therefore, it is reasonable for that to continue outside the UK, whether or not the partner seeks to learn a/the language spoken in the country of proposed return.The factors which might be relevant to the consideration of whether an insurmountable obstacle exists include but are not limited to:

(a)Ability of family to lawfully enter and stay in another country. The decision maker should consider the ability of the parties to lawfully enter and stay in the country concerned. However, the onus should be on the applicant to show that this is not possible in
order for this to amount to an insurmountable obstacle. A mere wish/desire/preference to live in the UK would not amount to an insurmountable obstacle.

(b)Cultural and religious barriers. Thismight be relevant in situations where the partner would be so disadvantaged as for it to be unreasonable to expect them to live in that country. The test is a high one. It must be a barrier which either cannot be overcome or is unreasonable to expect a
person to overcome.

(c)The impact of a mental or physical disability. Whether or not either party has a mental or physical disability,a move to another country may involve a normal period of hardship as the person adjusts to their new
surroundings. But a physical or mental disability could in some
circumstances mean that the degree of hardship which would be
experienced by the person would be unreasonable to the extent that it
amounts to an insurmountable obstacle.

Also see

73. Ground Two: Judge Keane made no error of law in considering whether it was reasonable to expect Mr Akinola to relocate to Nigeria. The requirement of EX 1 (b) that “there are insurmountable obstacles to family life with that partner continuing outside the UK” may be a requirement of the Secretary of State’s policy but it is not a requirement for the judge to apply in considering Article 8.

[dada]

Thanks Obie for that reply - I had been wondering about this but couldn't find more information on it. I believe we have 'insurmountable obstacles to family life with my partner continuing outside the UK' so I really hope this would be taken into account for my recently submitted application. My partner has a disability and is exempt from the financial requirement. Fingers crossed.

[vinny]

The judge goes on to reiterate yet again that whether there are ‘insurmountable obstacles’ to relocating abroad is not the test to be applied in this type of Article 8 case, reminding us that if there are insurmountable obstacles that is likely to assist an applicant, but that an insurmountable obstacle of some sort is not a prerequisite to success.

> 47.

Also: Insurmountable obstacles finally bite the dust.

[Obie]

Thanks Vinny for updating this thread on the recent decision in Nagre.

It was very clear from the outset, that the Secretary of State's immigration rule cannot withstand the test of time.