Case No. UKUT-00043(IAC)

93. Mr Lindsay has submitted that it was reasonable to expect the sponsor to move to or go and live in Sri Lanka in order for their family life to take place in that country. Mr Lewis opposes that, submitting that that there would be insurmountable obstacles in the way of the sponsor doing so. He highlights that the sponsor is categorical that he does not want to go back and live in Sri Lanka We find the evidence relating to this issue somewhat mixed. The sponsor had lived there before: between 2011 and November 2017 he appears to have spent a considerable amount of time there. He says he has learnt Tamil. Even though he expressed concerns about being able to find properly remunerated employment there, he did have a job there for two months and he has not raised any other concerns about his own position if residing there. Although the sponsor suffers from depression and psychological problems, both he and his GP describe this as resulting from his separation from his wife and children. Even if being reunited with his family did not relieve or reduce his depression, there was no medical evidence, and it was not suggested by Mr Lewis, that he would be unable to access medical help for this condition in Sri Lanka. Notwithstanding his depression, he had worked and even after his recent accident, he said he was hopeful of finding work soon. On the other hand, it is clear that both the sponsor and the appellant badly want to live together as a family in the UK and that is also the keen wish of their children. If he returns to Sri Lanka to be with them, even though it is likely he will be able to find employment there, as he did before, it may well be at a level of remuneration lower than that required to meet the MIR. 94. Weighing up the above considerations, we are satisfied that the sponsor returning to live in Sri Lanka would cause difficulties. But we are not satisfied that for him to go and live in Sri Lanka with his family would pose insurmountable obstacles or result in unjustifiably harsh consequences. We remind ourselves what was said in relation to the test of “insurmountable obstacles” in R (on the application of Agyarko) (Appellant) v Secretary of State for the Home Department (Respondent) [2017] UKSC. The Supreme Court stated at [45] that: “By virtue of paragraph EX.1(b), “insurmountable obstacles” are treated as a requirement for the grant of leave under the Rules in cases to which that paragraph applies. Accordingly, interpreting the expression in the same sense as in the Strasbourg case law, leave to remain would not normally be granted in cases where an applicant for leave to remain under the partner route was in the UK in breach of immigration laws, unless the applicant or their partner would face very serious difficulties in continuing their family life together outside the UK, which could not be overcome or would entail very serious hardship.”