Under Gen 3.2/Article 8 leave outside the Immigration Rules a leading case of GM (Sri Lanka) V Secretary of State for Home Department [2019] EWCA Civ1630,

where the following was stated:

47… In relation to the position under Article 8 outside the [Immigration Rules], under ECHR case law the extent to which obstacles to return can be overcome is simply a “relevant factor” in relation to “non-settled” applicants; it is not the test.

51… even if it is practicable and feasible for a person to return that is not the end of the story – proportionality must also be considered which necessitates the careful analysis of the fair balance that exists between the State’s interest in immigration control and the individual’s interests…a person might be able to return to a foreign country, yet it might still be unreasonable or disproportionate to compel return.

The need for a careful assessment of proportionality, taking into account the relative strength of the public interest in removal, was also discussed in Lal. In paragraph 68 the Court of Appeal stated:

A further error of law in the reasoning of the Upper Tribunal (quoted in paragraph 48 above) is that the judge applied the wrong test by asking whether the couple would be able to live in India “without serious hardship”. As discussed earlier, that is a relevant criterion in deciding whether there are “insurmountable obstacles” to continuing family life outside the UK. In considering, however, whether there are “exceptional circumstances”, the applicable test is whether refusing leave to remain would result in “unjustifiably harsh consequences” for the applicant or their partner, such that refusal would not be proportionate: see the passage from the Secretary of State’s instructions to officials quoted at paragraph 11 above and the Agyarko case at paras 54-60. The essential difference (reflected in the word “unjustifiably”) is that the latter test requires the tribunal not just to assess the degree of hardship that the applicant or their partner would suffer, but to balance the impact of refusing leave to remain on their family life against the strength of the public interest in such refusal in all the circumstances of the particular case.

Furthermore, the need for a careful assessment of proportionality, taking into account the relative strength of the public interest in removal, was also discussed in Lal. In paragraph 68 the Court of Appeal Stated:

So, contact our team of Expert Immigration Solicitors GEN 3.2/Article 8 outside the Immigration Rules.

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