When not to appeal and when to make an entry clearance application!

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
20 February 2023

We were instructed on behalf of an Indian national who entered the UK in 2021 as a visitor, and on the advice of her previous solicitors made an application for leave to remain in the UK on the basis of her marriage to a British national. The application was refused, as the Secretary of State argued that she could not meet the eligibility requirements as she did not fall within the concession which was in place with the UK Government due to the Pandemic. This concession enabled visitors to switch in country to a category under Appendix FM. The end of the concession was 30th June 2021 and her visitors visa expired in November 2021. She met the financial requirements and the English test but did not satisfy the requirement under Appendix FM Ex. 1 as it was considered that there would not be insurmountable obstacles to the family life continuing in India. She submitted an immigration appeal as she was of the opinion that there would be insurmountable obstacles to family life continuing in India, given her husband’s employment in the UK, the family ties and the fact that the child of the marriage was a British national.

It was a difficult decision to make but we advised her not to pursue the appeal, but instead to go back to India and to make a fresh application. On our advice she withdrew her appeal and returned to India in November 2022. We were delighted to be informed in February 2023 that her spouse visa application for entry clearance was successful and that she can now come back to the UK with her child to live with her husband.

The importance of this decision is to illustrate that sometimes it is not worthwhile appealing and sometimes it is best to make an entry clearance application.

In this case the only reason the application was refused was because of the eligibility requirements. In every other respect the application would have been successful from abroad and the time the applicant had spent abroad would have been shorter than the time she would have had to wait for an appeal to be listed. The chances of success and satisfying “the insurmountable obstacles” test was not an open and shut case and we could not guarantee that the Judge would find that there were insurmountable obstacles to family life continuing in India. The cost of making a fresh application can be cheaper than litigating, even if we take into account the need to pay the Home Office fee and the NHS surcharge. In this particular case, the hardship on the family in relocating to India for a relatively short time was worthwhile.

What are insurmountable obstacles?

Insurmountable obstacle is a very strict test and indicates a very high threshold. In Agyaroko it was held that this test, though strict, was compatible with Article 8, the right to private and family life.

Very significant difficulties means in practice, that it would be literally impossible to continue the family life together overseas, or that the person would face very serious hardship entailed by overcoming that obstacle. The decision to appeal or not to appeal is made on a case-by-case basis.

On occasions we recommend that our clients appeal, where we are satisfied that the test of insurmountable obstacles can be met or when we believe that the decision maker will come to the conclusion that refusal would result in unjustifiably harsh consequences to the people involved which would be a disproportionate interference with Article 8. That means that leave can be granted in exceptional circumstances and outside the Rules. Before you make a decision whether or not to appeal it is best to contact an immigration lawyer.