Agyarko and Ikuga, R (on the applications of) v Secretary of State for the Home Department

Factual and Procedural Background

The matter comes before the Supreme Court on appeals from a judgment of the Court of Appeal ([2015] EWCA Civ 440). The appeals were heard on 6 and 7 April 2016, and judgment was delivered on 22 February 2017 by a seven-judge panel. The appellants—each of whom had formed relationships with partners in the United Kingdom while remaining in breach of immigration laws—challenged refusals of leave to remain. They contended that the Home Office policy contained in Appendix FM to the Immigration Rules and in the accompanying “Instructions” was incompatible with Article 8 of the European Convention on Human Rights (ECHR) and, in part, with European Union (EU) law.

At the centre of the dispute lie two provisions: (1) paragraph EX.1(b) of Appendix FM, which requires “insurmountable obstacles” to family life continuing outside the United Kingdom where the applicant is in breach of the immigration laws, and (2) a requirement in the Instructions that, where the Rules are not met, leave should be granted only in “exceptional circumstances.” The appeals therefore turn on the legality and proper interpretation of those provisions, as well as on associated questions of domestic and EU law.

Legal Issues Presented

1. Whether the “insurmountable obstacles” test in paragraph EX.1(b) of Appendix FM is compatible with Article 8 of the ECHR and how it should be construed for applications decided before the 28 July 2014 amendment introducing a statutory definition.
2. The meaning and legal significance of “precariousness” in the Article 8 proportionality assessment of family life established while immigration status was uncertain or unlawful.
3. Whether the Secretary of State may properly require proof of “exceptional circumstances” before granting leave outside the Rules to a non-settled migrant with a precarious family life.
4. Whether Appendix FM is unlawful under EU law—or under section 1(1) of the Immigration Act 1971—insofar as it proceeds on the basis that a British citizen can ordinarily relocate abroad with a non-national partner unless insurmountable obstacles exist.
5. Whether, on the individual facts of the appellants’ cases, the Secretary of State’s refusals of leave were lawful.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

In a detailed review of the legislative and policy framework, the Court first explained the distinctive status of the Immigration Rules: although not primary legislation, they acquire legal force through Parliamentary approval under section 3(2) of the Immigration Act 1971, and tribunals must apply them in appeals.

The judgment then traced the evolution of the Secretary of State’s approach to Article 8. Early Rules afforded decision-makers broad discretion, with Article 8 considerations addressed mainly through the residual discretion to grant leave outside the Rules. Increasing case-load, complexity and the lessons of Huang led to a policy shift toward greater certainty and reduced discretion. Appendix FM, introduced in 2012 (HC 194), sought to embed a pre-determined assessment of proportionality—balancing family life against the public interest—directly into the Rules.

Turning to the disputed provisions, the Court noted that paragraph EX.1(b) applies where an applicant is in breach of immigration laws; leave may be granted only if there are “insurmountable obstacles” to family life continuing abroad. The Instructions in force when the appellants applied defined the concept by reference to difficulties that “could not (or could not reasonably be expected to) be overcome,” and cautioned that “exceptional circumstances” justifying departure from the Rules would arise only rarely, where refusal would produce “unjustifiably harsh” consequences.

The Court examined whether:

• the “insurmountable obstacles” threshold is so high as to be inconsistent with Article 8,
• the concept of “precariousness” legitimately reduces the weight given to family life established while an applicant’s status was unlawful or uncertain,
• requiring “exceptional circumstances” outside the Rules is compatible with the Secretary of State’s Article 8 obligations, and
• EU law, particularly the principle in Ruiz Zambrano, limits the expectation that a British citizen partner can relocate abroad.

In addressing these matters, the Court emphasised that the Human Rights Act 1998 imposes a duty on every public authority—not just the courts—to act compatibly with Convention rights. Consequently, Immigration Rules or Instructions inconsistent with Article 8 could not be determinative; decision-makers must always reach a proportionate outcome.

Holding and Implications

This information was not available in the provided opinion.