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Insurmountable obstacles finally bite the dust

Insurmountable obstacles finally bite the dust

An insurmountable obstacle
An insurmountable obstacle

It was already clear but now it could not be clearer: you do not have to show that there are ‘insurmountable obstacles’ to your family joining you abroad in order to succeed in an Article 8 family life case. The new judgment in VW (Uganda) is crystal clear and very welcome, and I even managed to use it in court today.

As Lord Justice Sedley pointed out in LM (DRC) v Home Secretary there are very few obstacles that one literally cannot surmount, which would be far too high a test in this context. The Strasbourg and higher domestic authority was quite clear in saying that the test is a plain one of reasonableness. It is not an easy test to satisfy and a lot more than inconvenience or a little hardship is required, but it has certainly never been necessary to show an insurmountable obstacle. Unfortunately this did not prevent many immigration judges from imposing exactly this test and misconstuing earlier case law, and then the President of the tribunal in VW (from which this was the appeal) suggested that ‘insurmountable obstacles’ and ‘reasonableness’ are one and the same.

With respect, the words of the former test obviously impose something more than an enquiry into what is reasonable. They are clearly what lawyers call a gloss. It is a shame that the former President’s analysis in Bakir was not heeded by more immigration and senior immigration judges.

All that has been sorted out now, thankfully, and the tribunal has been overturned on appeal again on another significant issue where a deliberately conservative line was followed.

The judgment in VW is also significant in focussing in on the welfare of the affected child. A report from an Independent Social Worker was considered and considerable weight seems to have been attached to it: the court decided to allow the appeal outright rather than remitting it. ISWs should routinely be instructed in cases involving children so that their best interests are actually considered, as is required by Uner v Netherlands and Beoku-Betts, rather than being swept under the carpet.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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