Held, appeal allowed. (1) The correct approach to determining whether there were “insurmountable obstacles” within paragraph EX.1 of Appendix FM to the Immigration Rules was first to decide whether the alleged obstacle to continuing family life outside the United Kingdom amounted to a very significant difficulty, and if that threshold requirement was met, the next question was whether the difficulty would make it impossible for the claimant and her husband to continue family life together outside the United Kingdom. If not, the final question to be considered was whether, taking account of any steps which could reasonably be taken to avoid or mitigate the difficulty, it would nevertheless entail very serious hardship for the claimant, her husband or both of them. The test was to be applied having regard to the particular characteristics and circumstances of the individual concerned. The ultimate question in the present case was whether, in all the circumstances, the climate would entail not merely a significant degree of hardship or inconvenience for the husband but “very serious hardship”. Since the First-tier Tribunal had not undertaken a factual enquiry of that kind its conclusion had been deficient and the Upper Tribunal had been right to set it aside and to remake the decision by reference to the First-tier Tribunal’s findings of fact and the documentary evidence (paras 34–40).

(2) The question whether the evidence showed that there were “insurmountable obstacles” to the claimant and her husband continuing family life outside the United Kingdom because of her husband’s intolerance of heat was one of fact which did not require medical evidence. It required consideration of issues such as where in India they would or could be expected to live, the climatic conditions in the relevant parts of India at different times of the year and measures available to mitigate the heat. Since there was no evidence that the First-tier Tribunal had addressed those matters, the Upper Tribunal had been entitled to decide that the claimant had failed to show that her husband’s difficulty in coping with the heat in India amounted, on its own, an insurmountable obstacle to continuing family life outside the United Kingdom. However, the Upper Tribunal had gone wrong in its approach by considering various other matters identified as obstacles separately from each other without assessing their cumulative impact. The correct approach was to identify all the significant difficulties the claimant and her husband would face if required to move to India and ask whether, taken together, they would entail very serious hardship for the husband. Had such an approach been taken the decision was not a foregone conclusion, and accordingly in remaking the decision on insurmountable obstacles the Upper Tribunal had made an error of law (paras 41–47).

(3) In considering whether there were exceptional circumstances which made refusing the claimant leave to remain in the United Kingdom disproportionate and therefore incompatible with article 8 of the Convention, a proportionality assessment was required. Although section 117B(5) of the Nationality, Immigration and Asylum Act 2002 required that little weight was to be given to private life established by a person at a time when the person’s immigration status was “precarious” (ie lawful but with limited leave), there was no requirement that little weight was to be given to a relationship formed with a qualifying partner established at a time when the person’s immigration status was precarious. The Upper Tribunal had erred by holding otherwise. Rather, the weight to be given in a proportionality assessment to such a relationship depended on the particular circumstances, including the duration of the relationship, the details of the claimant’s immigration history and particular immigration status when the relationship was formed. In weighing the relevant factors to determine whether there were exceptional circumstances, the correct test was to consider whether refusing leave to remain would result in “unjustifiably harsh consequences” for the claimant or her husband, such that refusal would not be proportionate. That test required the impact of refusing leave to remain on their family life to be balanced against the strength of the public interest in such refusal in all the circumstances of the case, which the Upper Tribunal had failed to do. The errors of law made by the Upper Tribunal were material and accordingly its decision to dismiss the appeal from the refusal of the claimant’s human rights claim would be set aside (paras 48–50, 56–61, 63–67, 68–72).

(4) The appropriate course was to remit the case to the Secretary of State to consider the case afresh, addressing the relevant questions and the material change of circumstances since the Upper Tribunal hearing, namely the birth of a daughter to the claimant and her husband. The child being a British citizen and therefore a qualifying child for the purposes of paragraph EX.1 of Appendix FM to the Immigration Rules and section 117B(6) of the 2002 Act, a new assessment was required (paras 72–73).