Winning a “serious hardship case”
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
We have been successful on an appeal which was heard before the First Tier Tribunal in Manchester in January 2019. The main point of argument was whether or not there are insurmountable obstacles to family life continuing outside the UK. We have provided an expert report that dealt with the treatment of white women following the 2008 elections in Zimbabwe, given that the married couple whose appeal was heard, was mixed race. White British woman and a Zimbabwean black male.
The test for insurmountable obstacles was discussed in the Supreme Court in Agyarko where it was described as “a stringent test”. It is not enough that there are some difficulties, they have to be very significant difficulties which could not be overcome or which entail not just some hardship, but “very serious hardship”. The fact that the appellant’s partner has never been to Zimbabwe or indeed anywhere in Africa clearly does not meet this stringent test, nor does the fact she would be leaving behind a close family network including grandchildren and an elderly mother. These are common features of cases that regularly are found not to satisfy the test as can be seen by looking at the factual situation in Agyarko and the case of Ikuga heard together and relating to return to Ghana and Nigeria. Zimbabwe is a different country with its own particular problems as to which we presented an expert report from Professor Aguilar.
The report stated that a black Zimbabwean with a European white partner is suspected within the country by Zanu PF because of the history of white settlers and the financial power within the country before Mugabe’s attack on white settlers and their evictions. Therefore, the expert conclusion that the appellant’s partner as a white woman would be at risk of social discrimination, attacks and violence if she accompanied her husband and tries to settle in Zimbabwe was important. Therefore, it was capable of satisfying the test of insurmountable in terms of not being able to be overcome. Taking account of the expert report, the Judge found that the evidence in this case takes it beyond one where there are normal difficulties and hardship of a British based partner relocating in a foreign culture. Therefore, the case was allowed on human rights grounds!