apeal success in FLR (FP)?

3.2.7c Assessing whether there are insurmountable obstacles

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 commonly understood 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. This might 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.