[25] In the court’'s view, it cannot be said that the decision maker’'s conclusion was arguably unreasonable or irrational. The evidence to bring home a case of the existence of insurmountable obstacles simply was not there. Both the applicant and her husband are mature individuals. Both had spent most of their lives in China. Both speak Chinese. There was no convincing reason to suggest that they could not re-adapt to live in China. There was evidence that the applicant had siblings in China. She had told this to immigration officials. Mr Shi appears in recent times to have spent considerable time in China. This suggests that he had business or, alternatively, family interests there. The case that he could not on medical grounds travel to China appears to the court to be fanciful. The same can be said of the case that the applicant was her husband’'s carer. In any event, medical services were and are available in China. There is no reason to believe that either the applicant or her husband could not work or establish a business in China. It was a tenable view on the part of the decision maker that a tribunal would lack evidence in this case which could support the conclusion that the couple would face very significant difficulties or very serious hardship if they were to return to China. Insofar as the applicant’'s case was based on the presence of her children (or grandchildren) in the United Kingdom, the decision maker had pointed out that contact could be kept up through visits and via modern technology. While this might involve some inconvenience, this was not of a sort which would reach the intensity of an insurmountable obstacle which could generate a realistic prospect of success before a tribunal.
[26] Turning to the question of breach of Article 8 outside the immigration rules in this case, it is important to appreciate the role of the immigration rules in this area. The rules had been re-written to try to specify relevant factors in more detail than before based on domestic and Strasbourg case law. In the great bulk of cases the hope had been that it would be unnecessary to stray outside the factors considered in the rules. However, it remained the case that where a claim failed in terms of the rules, the question of breach of Article 8 could still be considered outside the rules.
[27] Reviewing the position in 2013 Sales J (as he then was) said (at paragraph [29]) of his judgment in Nagre :
[28] In guidance provided by the Secretary of State in respect of the approach to be applied in deciding whether to grant leave to remain outside the rules, it has been stated as follows (quoted in Nagre at paragraph [13]):
[29] Sales J said of the above guidance in Nagre (at paragraph [14]) that:
[30] In the present case while the applicant and Mr Shi married in China and must have contracted their relationship at that time before either arrived in the United Kingdom, the applicant’'s time in the United Kingdom has predominantly been as a person who has overstayed and whose stay has been precarious and unlawful. This is a significant factor. It is also the case that, apart from the claim already discussed about her relationship with her children and their children in the United Kingdom, there is scant evidence in the papers of her having a developed private life in the United Kingdom to any substantial degree.
[31] The Home Office decision maker was clearly of the view that the applicant’'s case did not bear any realistic prospect of success before a Tribunal in the context of an alleged breach of Article 8 outside the rules, her claim in this regard having been unsuccessful within the rules. The court cannot view as arguable that this finding in this case was unlawful as being unreasonable or irrational. The court respectfully agrees with Sales J’'s summation at paragraph [43] of Nagre where he said that “"in the majority of cases, if the applicant for leave to remain cannot show that there are insurmountable obstacles to relocation of a spouse or partner to his or her country of origin so as to meet that part of the test laid down in EX.1(b), they will not be able to show that their removal is disproportionate”". That, in the court’'s judgment, is the position here.
Conclusion
[32] In all the circumstances of this case and approaching this case with anxious scrutiny, the court is not persuaded that this is a case where it is arguable that the decision maker has acted unreasonably in arriving at his/her conclusion that the applicant’'s case did not reach the standard of demonstrating a reasonable prospect of success before an immigration Judge.
[33] In these circumstances, for the reasons given, the court refuses leave to apply for judicial review.
Note 1 It has come to the court’s attention since writing this judgment that the Court of Appeal’s decision in this case has been affirmed by the Supreme Court: see [2017] UKSC 11 . [Back]