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||Neutral Citation Number:  EWCA Civ 1054
||Case Nos: C5/2011/2139/AITRF and C5/2012/0217/AITRF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)
Lord Menzies and Upper Tribunal Judge Peter Lane  UKUT 444 (IAC), IA/41216/2010
Deputy Immigration Judge Monson, IA/4126/2010
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY
VICE PRESIDENT OF THE COURT OF APPEAL CIVIL DIVISION
LORD JUSTICE ELIAS
SIR DAVID KEENE
|| SECRETARY OF STATE FOR THE HOME DEPARTMENT (1)
ARVIN TREEBHOWAN (MAURITIUS) (2)
||- and -
||KIZHAR HAYAT (PAKISTAN) (1)
SECRETARY OF STATE FOR THE HOME DEPARTMENT (2)
Ms Lisa Busch (instructed by The Treasury Solicitor) for the First Appellant
Mr Zane Malik (instructed by Mayfair Solicitors) for the First Respondent
Mr Paul Turner (instructed by Raj Law Solicitors) for the Second Appellant
Mr Neil Sheldon (instructed by The Treasury Solicitor) for the Second Respondent
Hearing date : 28 June 2012
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Elias :
- We have heard together two appeals. Each raises, amongst other matters, issues concerning the proper scope and application of the decision of the House of Lords in Chikwamba v Secretary of State for the Home Office  UKHL 40 and so they are being dealt with in a single judgment. In Treebhowan (Mauritius) the appellant appeals against the decision of the Upper Tribunal which upheld the decision of the First Tier Tribunal that he had no right arising out of Article 8 of the ECHR to remain in the UK. In Hayat (Pakistan) the appellant is the Secretary of State who challenges the conclusion of the Upper Tribunal that the respondent's Article 8 claim should be sustained. Before considering the details of those cases, I will first discuss the Chikwamba case and its analysis by subsequent decisions of the Court of Appeal.
- The circumstances of that case were as follows. The claimant was a Zimbabwean national who had arrived in the UK in April 2002 and thereafter unsuccessfully sought asylum. She was not removed at that time because the Secretary of State had decided to suspend the removal of failed asylum seekers to that country. In November 2002 she married another Zimbabwean national who had been granted indefinite leave to remain. She contended that her removal would infringe her Article 8 rights but her application failed both before the Secretary of State and on appeal before the adjudicator, notwithstanding that the adjudicator described conditions in Zimbabwe as being "harsh and unpalatable". The adjudicator wrongly held that the since the applicant's case under Article 3 failed, she could not establish an Article 8 case.
- In April 2004 a daughter was born and in January 2005 the Immigration Appeal Tribunal ("IAT") dismissed her appeal, essentially on the grounds that she should return to Zimbabwe and seek entry clearance from there. It was a purely procedural point which did not otherwise engage with the substantive merits of her case. This was in accordance with the policy of the Secretary of State that where there is a procedural requirement that an application should be made from the applicant's home state, he should be returned home to make the application from there. The relevant asylum policy instruction observed that sometimes the family could travel with the applicant, in which case there was no interference with family life. Even where that was not possible, the view was expressed that any separation was likely to be temporary and so any interference was likely to be proportionate. In this case it was accepted that the applicant's husband could not return with her to Zimbabwe but the IAT noted that the separation would be only for a relatively short period.
- The Court of Appeal rejected her appeal:  EWCA Civ 1779. Auld LJ, with whose judgment Jonathan Parker and Lloyd LJJ agreed, dismissed a contention that given that Ms Chikwamba's marriage in the UK was accepted to be genuine, it was wrong of the IAT to regard the application as a normal immigration application which she should have to make from Zimbabwe. He said this (para 45):
"In my view, Mr Husain's complaint under this head is ill-founded in two respects. First, as the authorities to which Mr Kovats has referred indicate, the fact that someone who has arrived in this country without the required entry clearance may be able to show that he would have been entitled to one does not, in the absence of exceptional circumstances, allow him to remain here without it. As Laws LJ observed in Mahmood, at paragraph 26:
"it is simply unfair that he [or she] should not have to wait in the queue like everyone else."
Or, as Simon Brown LJ in Ekinci, a case of a Turkish asylum seeker who had entered this country via Germany, put it at paragraph 17:
"17 ..... It would be a bizarre and unsatisfactory result if, the less able the applicant is to satisfy the full requirements for entry clearance, the more readily he should be excused the need to apply ..... It is entirely understandable that the Secretary of State should require the appellant to return to Germany so as to discourage others from circumventing the entry clearance system ..... ""
- The House of Lords overturned this decision on appeal. The leading speech was given by Lord Brown of Eaton-under-Heywood. Lord Bingham, Lord Hope, Lord Scott and Baroness Hale all agreed with it. Lord Scott and Baroness Hale also gave short judgments of their own.
- Lord Brown identified the relevant issue before the court in the following terms (para 9):
"In determining an appeal under section 65 of the Immigration and Asylum Act 1999 (the 1999 Act) (now sections 82 and 84 of the Nationality, Immigration and Asylum Act 2002 (2002 Act)) against the Secretary of State's refusal of leave to remain on the ground that to remove the appellant would interfere disproportionately with his article 8 right to respect for his family life, when, if ever, is it appropriate to dismiss the appeal on the basis that the appellant should be required to leave the country and seek leave to enter from an entry clearance officer abroad?"
- The appellant's submission was that the interference with family life occasioned by the requirement for the appellant to return to Zimbabwe, even if only for a short time, was in the circumstances disproportionate to any legitimate objective of immigration control.
- Lord Brown discussed the two earlier Court of Appeal decisions which had in large part dictated the decision of the Court of Appeal in this case. He quoted more fully than had the Court of Appeal the observations of Laws LJ in Mahmood v Secretary of State for the Home Department  1 WLR 840 when Laws LJ held that it would typically be proportionate for the Secretary of State to insist that an applicant for entry clearance should make the application from his country of origin, as the rules require (para 23):
"Firm immigration control requires consistency of treatment between one aspiring immigrant and another. If the established rule is to the effect—as it is—that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited, to remain in the UK) must obtain an entry clearance in his country of origin, then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin."
- The second decision mentioned by the Court of Appeal, which followed Mahmood, was R (Ekinci) v Secretary of State for the Home Department  Imm A R 15. The claimant had entered the UK illegally and claimed asylum, untruthfully saying that he had not previously sought asylum in any other EU country. In fact he had twice unsuccessfully made such a claim in Germany. Arrangements were made for him to be returned there in accordance with the Dublin Convention. Shortly thereafter he married a woman whom he had known in Turkey and who had come to the UK and acquired British citizenship. He had an appalling immigration history. Although there was no doubt that ultimately he would be allowed to remain with his wife in the UK, Simon Brown LJ, as he was, held that there was nothing remotely disproportionate in requiring him to return to Germany and to apply for entry clearance from there as the rules required. The time taken to process such applications was under a month.
- As Lord Brown observed in Chikwamba, the effect of the policy in Ekinci required the applicant to be absent from the UK for only a limited period of time, since the evidence was that entry clearance would be achieved within three months. The question was whether such a temporary disruption of family life would be proportionate and in the particular circumstances the court held that it would.
- Lord Brown accepted that the maintenance and enforcement of immigration control was a legitimate aim. However, he was unpersuaded by the argument, accepted by Laws LJ in Mahmood, that others required to apply from abroad would feel it unfair if persons like the appellant who also fell within the policy were permitted to have their cases determined without first returning home. Consistency of treatment was not such a virtue that it dictated an unthinking enforcement of the policy. Lord Brown identified a different justification for the policy (paras 41-42):
"Is not the real rationale for the policy perhaps the rather different one of deterring people from coming to this country in the first place without having obtained entry clearance and to do so by subjecting those who do come to the very substantial disruption of their lives involved in returning them abroad?
Now I would certainly not say that such an objective is in itself necessarily objectionable. Sometimes, I accept, it will be reasonable and proportionate to take that course….."
- He then identified situations where the enforcement of the policy would be appropriate, such as where a claimant's immigration history was poor, as in Ekinci. He also identified factors which might have a bearing on whether the policy should be implemented. For example, it would be relevant that an applicant who had arrived illegally had good reason to do so, such as where he has a genuine asylum claim; in an Article 8 family claim the prospective length and degree of disruption involved in requiring the applicant to return would be material; and it would be legitimate to enforce the policy where the entry clearance officer abroad was better placed to investigate the claim.
- Moreover, Lord Brown emphasised that the routine dismissal of Article 8 cases on this basis was not consistent with a proper respect for Article 8 rights, and nor did it make sense in administrative terms (para 44):
"I am far from suggesting that the Secretary of State should routinely apply this policy in all but exceptional cases. Rather it seems to me that only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad. Besides the considerations already mentioned, it should be borne in mind that the 1999 Act introduced one-stop appeals. The article 8 policy instruction is not easily reconcilable with the new streamlined approach. Where a single appeal combines (as often it does) claims both for asylum and for leave to remain under article 3 or article 8, the appellate authorities would necessarily have to dispose substantively of the asylum and article 3 claims. Suppose that these fail. Should the article 8 claim then be dismissed so that it can be advanced abroad, with the prospect of a later, second section 65 appeal if the claim fails before the ECO (with the disadvantage of the appellant then being out of the country)? Better surely that in most cases the article 8 claim be decided once and for all at the initial stage. If it is well-founded, leave should be granted. If not, it should be refused."
- In this case it was held that the removal of the applicant with her child to the harsh and unpalatable conditions of Zimbabwe would cause a grave disruption to the family which was not justified simply by invoking the mantra that rules are to be obeyed. There has to be good reason for enforcing the policy and there was none in this case. Lord Brown held that in the longer term no one doubted that the family would be allowed to live together and accordingly, on the particular facts he concluded that her removal would violate her Article 8 rights.
- Lord Scott also considered that the rules were being operated in an inflexible way which had no regard for their impact upon individuals. Whilst he accepted that in general it was appropriate to require someone seeking Article 8 protection to return to his country of origin before making his or her Article 8 application (which might suggest, contrary to the speech of Lord Brown, that such cases need not be rare) that was not the case here. The exercise was futile. He succinctly summarised his reasons as follows (para 6):
"So what on earth is the point of sending her back? Why cannot her application simply be made here? The only answer given on behalf of the Secretary of State is that government policy requires that she return and make her application from Zimbabwe. This is elevating policy to dogma. Kafka would have enjoyed it. I would allow this appeal."
- Baroness Hale placed emphasis on the effect on the child, who would either have to be separated from her mother for some months or would have to travel with her mother to a harsh and unpalatable place, simply in order to enforce the entry clearance requirements. Even if it would not be disproportionate to require the husband to endure some months of separation, it was unreasonable to expect the child to do so.
- In Chikwamba the Article 8 claim was particularly strong. But in my view it is clear from paragraph 44 of his judgment that Lord Brown's objection to the routine enforcement of the policy was not limited to such cases. His observation that a one-stop appeal process should generally be adopted is equally valid where the claim might appear to be weak. It is true that the enforcement of the policy is likely to be particularly futile where entry clearance will ultimately be granted because it is requiring a temporary disruption of family life for no good purpose. To that extent, a preliminary assessment that the substantive merits are strong may be relevant to determining whether the policy should be enforced or not. But often the merits will not be clear until a careful assessment of the facts is made, and the dogmatic adherence to policy may in those cases too be a disproportionate interference with Article 8 rights.
- It may at first blush seem odd that Article 8 rights may be infringed by an unjustified insistence that the applicant should return home to make the application, even though a subsequent decision to refuse the application on the merits will not. The reason is that once there is an interference with family or private life, the decision maker must justify that interference. Where what is relied upon is an insistence on complying with formal procedures that may be insufficient to justify even a temporary disruption to family life. By contrast, a full consideration of the merits may readily identify features which justify a refusal to grant leave to remain.
Subsequent Court of Appeal decisions.
- There are three subsequent Court of Appeal cases which have considered Chikwamba.
- In TG (Central African Republic) v The Secretary of State for the Home Office  EWCA Civ 997 the Secretary of State accepted that an Article 8 claim would have to be reconsidered because the decision had been taken in breach of the principles set out in Chikwamba. She wanted the application to be remitted to a tribunal but the appellant pursued the appeal on the grounds that the court itself ought to grant indefinite leave to remain, as in Chikwamba.
- The Court of Appeal rejected this argument on the basis that Article 8 issues were fact sensitive and that the facts were not so stark as to entitle the court to make the decision in place of the appropriate fact finding tribunal. Keene LJ observed that it was not clear from the decision in Chikwamba whether there was any issue about whether it was appropriate for their Lordships to decide the Article 8 question rather than remitting the case. Buxton LJ thought it a matter of principle that the expert tribunal charged with deciding issues of proportionality should do so. Chikwamba in this respect was a wholly exceptional case.
- In SZ (Zimbabwe) v Secretary of State for the Home Department  EWCA 590 the applicant was from Zimbabwe and had been given leave to enter the UK initially as a visitor, but subsequently to study on a computer course. Later she applied to remain as a student in health studies. Her first such application made in December 2004 was rejected both because the college at which she wished to study was not registered with the Department of Education and Science, and because she did not have leave to remain at the time of the application. In February 2006 she made a fresh application, this time to study at a college which was registered. The Secretary of State rejected the application, and held that her removal would not infringe Article 8 because she had no credible reason for staying in the UK, she had not been studying since 2006, and any interference with her private life would be proportionate.
- The IAT held that the Secretary of State had erred in rejecting her claim. Central to this analysis was the Tribunal's conclusion that if she were to apply for a student visa from Zimbabwe, it would be granted to her. In the light of this fact, and because she was a genuine student, the IAT held that the appeal should be allowed and that she should be given leave to remain to carry on her studies.
- The Court of Appeal agreed with the submissions of the Secretary of State that the facts were incapable of sustaining the decision. In this context Pill LJ, with whose judgment Carnwath and Richards LJJ agreed, held that it was an error of law for the AIT to focus on what might happen in any renewed application, and that in any event it was far from clear that such an application would succeed. On the material before the tribunal the only appropriate decision was that the Article 8 application should fail. Chikwamba was not relevant. With respect, that decision is plainly right. The Article 8 claim had been dismissed on its merits and not simply on a preliminary procedural basis.
- Neither Carnwath nor Richards LJJ were prepared to consider the implications of Chikwamba. Lord Justice Pill did engage with that question. He cited paragraph 44 of Lord Brown's speech and summarised its effect as follows (para 21):
"If there is not a good Article 8 claim, permission should be refused. If there is a good Article 8 claim, it should not routinely be defeated by the need, on a jumping the queue basis, to leave and apply for entry clearance. If there is no sound Article 8 claim, that consideration does not apply."
- For reasons I have already given, I respectfully disagree with the last sentence and it does not sit happily with the first. If it is clear there is a good claim, it should be granted; if not, it should be dismissed. Chikwamba provides that at least where Article 8 is engaged, the decision maker should not, absent some good reason, fail to engage with the merits and dismiss the claim on the ground that the application should be made from abroad.
- In MA (Pakistan) v Secretary of State for the Home Department  EWCA Civ 953 the appellant appealed against a decision of the AIT which on a reconsideration had dismissed his appeal against a refusal of leave to remain. He had initially been granted leave as a student but had to give up studying when his funding was withdrawn, and he took up full time employment. In July 2007 he married and he and his wife travelled to Pakistan but returned when he fell out with his father. Subsequently his leave to remain was cancelled when the Secretary of State discovered that he was no longer studying. He unsuccessfully appealed that decision and a reconsideration was ordered on the grounds that the immigration judge had failed to consider the human rights implications of the decision.
- At the re-hearing the immigration judge held that the appellant could make a fresh application from Pakistan and that permission would in all likelihood be granted as he was a spouse of a British national. So the judge concluded that either they could go to Pakistan together or they would only be apart long enough for the fresh application to be made and determined. As to the latter, any inconvenience did not amount to an insurmountable obstacle such as to constitute a disproportionate interference with family life.
- The Court of Appeal held that the principle in Chikwamba applied notwithstanding that there were no children adversely affected by the decision in this case. The court also concluded that in the light of Chikwamba it was not appropriate to ask whether there were insurmountable obstacles in going to Pakistan. Lord Justice Sullivan, with whose judgment Jacob and Patten LJJ agreed, identified the relevant question as follows (para 9):
"The real question was not whether there were "insurmountable obstacles" to the applicant returning to Pakistan in order to make an application for entry clearance from there, but whether there was any sensible reason as to why he should be required to do so."
Sullivan LJ held that there was no such sensible reason. This was just the kind of case where the principle in Chikwamba should have been applied. The matter was remitted for a fresh decision to be taken on the substance of the Article 8 claim. Presumably the court took the view that whilst the claim was strong, it was not certain.
Summarising the principles.
- In my judgment, the effect of these decisions can be summarised as follows:
a) Where an applicant who does not have lawful entry clearance pursues an Article 8 claim, a dismissal of the claim on the procedural ground that the policy requires that the applicant should have made the application from his home state may (but not necessarily will) constitute a disruption of family or private life sufficient to engage Article 8, particularly where children are adversely affected.
b) Where Article 8 is engaged, it will be a disproportionate interference with family or private life to enforce such a policy unless, to use the language of Sullivan LJ, there is a sensible reason for doing so.
c) Whether it is sensible to enforce that policy will necessarily be fact sensitive; Lord Brown identified certain potentially relevant factors in Chikwamba. They will include the prospective length and degree of disruption of family life and whether other members of the family are settled in the UK.
d) Where Article 8 is engaged and there is no sensible reason for enforcing the policy, the decision maker should determine the Article 8 claim on its substantive merits, having regard to all material factors, notwithstanding that the applicant has no lawful entry clearance.
e) It will be a very rare case where it is appropriate for the Court of Appeal, having concluded that a lower tribunal has disproportionately interfered with Article 8 rights in enforcing the policy, to make the substantive Article 8 decision for itself. Chikwamba was such an exceptional case. Logically the court would have to be satisfied that there is only one proper answer to the Article 8 question before substituting its own finding on this factual question.
f) Nothing in Chikwamba was intended to alter the way the courts should approach substantive Article 8 issues as laid down in such well known cases as Razgar and Huang.
g) Although the cases do not say this in terms, in my judgment if the Secretary of State has no sensible reason for requiring the application to be made from the home state, the fact that he has failed to do so should not thereafter carry any weight in the substantive Article 8 balancing exercise.
- In the light of this analysis, I will now turn to consider the two appeals.
Kizhar Hayat (Pakistan).
- The appellant is a citizen of Pakistan who was born in November 1984. He lawfully entered the United Kingdom on 23 January 2007 with entry clearance as a student. His leave was later extended until 3 September 2008. Within the currency of that leave he applied for a further extension of leave as a Tier 1 post-study worker until 3 October 2010, and that application was granted.
- On 30 September 2010, shortly before the leave had expired, he applied for further leave to remain as the partner of a points-based system migrant. This application was made pursuant to paragraph 319C(h) of the Immigration Rules.
- The Secretary of State concluded that he did not meet the criteria in that rule and refused the application. There was at that stage no consideration of any Article 8 claim. The applicant appealed.
The First Tier Tribunal.
- The appeal was heard by Immigration Judge Herlihy. The judge noted that the appellant's representative had conceded that he could not satisfy the provisions of the Immigration Rules. Instead the appellant was relying solely upon his Article 8 claim.
- The judge heard evidence relating to that issue, both from the appellant and from his wife. The appellant said that they had married on 14 October 2010. He had known his wife by that stage for a year and they had commenced a relationship in November 2009. He contended that his wife, being from Pakistan, could not continue her studies if this required her to live independently of him. She had no other relatives in the UK. They were heavily dependent upon one another and they did not want to live apart. She was studying for an MSc in accounting and finance at Kingston University. All her fees had been paid by her father and the course was due to finish in 2011. He was working as a security supervisor.
- His wife adopted her statement which confirmed much of what her husband had said. She asserted that the appellant did everything for her such as pick her up from college, do the shopping, and generally give her moral support. They depended upon one another very much. Her parents did not approve of the marriage and they no longer spoke to her. She said the appellant's family were no longer living. She confirmed that when she had finished her course they would return to Pakistan as her husband had his own home there.
- The immigration judge set out the five well known steps identified by Lord Bingham of Cornhill at paragraph 17 in the Razgar case. The judge noted that a student here on a temporary basis has no expectation of a right to remain in order to further his family life if the points-based system is not met. She accepted that there was an established family life here and a subsisting marriage. Furthermore, he accepted that the appellant would have developed social relationships with friends and colleagues. The judge referred to Beoku-Betts v Secretary of State for the Home Department  UKHL 39, which requires the judge to have regard to the impact on other family members where an Article 8 decision is under consideration.
- The judge summarised her conclusions thus (paras 9.8 - 9.9):
"I find the Appellant's family life with his wife can continue in Pakistan although I acknowledge that the Appellant's wife will not wish to return whilst her course is ongoing and I note that her course is due to finish in any event in November 2011, although I note from the visa endorsed in her passport and shown at page 17 of the appeal bundle that her leave as a Tier 4 (General) Student expires on 21 March 2011. I do not find that there are any obstacles preventing the Appellant's wife remaining in the United Kingdom to conclude her studies whilst the Appellant returns to Pakistan for a short period of time until she returns to join him or whilst the Appellant seeks entry clearance to return to the United Kingdom to join her. I have also taken into account Chikwamba v SSHD  UKHL 40 and appreciate that it is not necessarily unlawful to require an Appellant who relied on a human rights ground to return to their country of origin to make an application for entry clearance. The rationale behind the Home Office policy of routinely requiring Appellants to apply from abroad was to deter others from entering without entry clearance. This could be a legitimate objective and in certain cases could be the right course of action, but only when relevant considerations in the particular case made it so. In an Article 8 family case the prospective length and degree of family disruption involved in going abroad for an entry clearance certificate will always be a highly relevant factor in the assessment of proportionality.
I find that the Appellant and his wife have only been in the United Kingdom on a temporary basis and they could have had no expectation of a right to remain in order to further their family life, ties and relationships. Unlike the applicant in Chikwamba the Appellant is not seeking leave to settle in the United Kingdom as a spouse and I find that the decision is proportionate and that it serves a public end. I find that the decision of the Respondent is not sufficiently serious to amount to a breach of rights of the Appellant under Article 8."
- It is not entirely clear whether the judge was forming a concluded view on the substantive merits of the claim or whether she was holding that this was one of those relatively rare cases recognised by Lord Brown in Chikwamba where he was justified in requiring the applicant to make his application from Pakistan. I think it was at least the latter. In fairness to the judge, in a case where the substantive application is for leave to remain in the UK for only a limited period, there will in practice be an overlap of the factors going to the substantive merits and those going to the Chikwamba point. Either way, the judge concluded that there was a good reason to reject the Article 8 claim and she identified the factors which dictated her conclusion. She was not unthinkingly applying a policy that the application should be lodged from abroad.
The hearing before The Upper Tribunal.
- In the appeal to the Upper Tribunal, two grounds of appeal were pursued. The first was that the judge had failed properly to apply the Chikwamba test. The second was that the judge had failed to consider the respondent's own policy document in which she had formally revised her approach on the determination of an Article 8 case in the light of three House of Lords' decisions given on the same day, namely Chikwamba, Beoku-Betts and EB (Kosovo)  UKHL 41.
- The Upper Tribunal (The Honourable Lord Menzies and Upper Tribunal Judge Lane) peremptorily dismissed the appeal in relation to the policy guidance since its existence had not been mentioned before the First Tier Tribunal and they would not have been aware of it. That ground has not been renewed before us. The Upper Tribunal focused upon the Article 8 ground.
- The appellant's case was that the immigration judge had failed properly to apply the judgments of the House of Lords in Chikwamba and had not properly undertaken the proportionality balancing exercise. The Upper Tribunal cited copiously from the judgment of Lord Brown and they considered two subsequent Court of Appeal cases to which I have referred, namely TG (Central Africa Republic) and MA (Pakistan).
- Having regard to those principles, the Upper Tribunal concluded that the immigration judge had reached a legally flawed determination in concluding that Chikwamba would not apply because "the appellant was not seeking leave to settle in the United Kingdom as a spouse". They were also critical of the fact that the judge had not weighed in the scales the relevant factors in favour of granting permission to remain, and in particular, the practical and emotional support supplied by the appellant to his wife, coupled with the fact that she had no family in the United Kingdom. Accordingly, they set aside the determination of the immigration judge and proceeded to re-make the decision themselves.
- The Tribunal summarised its key conclusions as follows (paras 22-27):
"22….. Mr Hopkin, for the respondent, acknowledged that the issue in re-making the appeal was whether the decision to remove was a disproportionate interference with the Article 8 rights of the appellant and his wife. In addressing that question, we have had regard to all the relevant evidence. We have also had regard to the entitlement of the respondent to make Immigration Rules, such as paragraph 319C, which restrict the circumstances in which a person who has secured leave to enter the United Kingdom in one capacity may obtain a variation of that leave in another capacity. Allied to this is the legitimacy of the consequence of such Immigration Rules, whereby those failing to meet their requirements may legitimately be required to leave the United Kingdom, if only to make an application to enter this country in accordance with the Rules.
23. The significance of Chikwamba, however, is to make plain that, where the only matter weighing on the respondent's side of the balance is the public policy of requiring a person to apply under the rules from abroad, that legitimate objective will usually be outweighed by factors resting on the appellant's side of the balance.
24. Viewed correctly, the Chikwamba principle does not, accordingly, automatically trump anything on the State's side, such as a poor immigration history. Conversely, the principle cannot be simply "switched off" on mechanistic grounds, such as because children are not involved, or that (as here) the appellant is not seeking to remain with a spouse who is settled in the United Kingdom.
25. Like the absence of children, that last factor may be one which diminishes the force of the principle; but whether it will do so depends upon an assessment of the facts. For example, if the position disclosed by the evidence had been that the appellant's wife was due to finish her studies only a few weeks after the date of the hearing, and was intending to return to her country of origin, and the evidence was such that she did not need the appellant to be present with her while she finished her studies and prepared to leave, then the Chikwamba principle would have had nothing to add to the appellant's case. The actual facts of the present case, however, were very different. As we have already seen, the appellant's wife had the best part of a year to go before the end of her first tranche of the ACCA course. She has now been given leave to remain until 2014 in order to complete that course. There is no suggestion that her practical and emotional need for her husband to be with her has diminished in any respect.
26. The fact that the presence in the United Kingdom of the appellant's wife depends upon her status here as a student, and only on that, has to be acknowledged in undertaking the balancing exercise. However, as we have indicated, that fact alone does not negate the Chikwamba principle. She is entitled to remain and study here until 2014. In practice, if the appellant were to be removed, it is highly likely that she would be without his help and support for a very substantial proportion of that time. The evidence is that she needs the appellant's help and support. She has committed no breach of the Immigration Rules. Nor has the appellant. There is a likelihood that, if the appellant were removed, his wife will find she is unable to continue her studies, thus negating the rationale of requiring him to go back to Pakistan to make an entry clearance application.
27. In short, on a proper analysis of the facts, the principle in Chikwamba points plainly to the factors in favour of the appellant outweighing the single factor relied on by the respondent."
- It is that decision which is the subject of appeal by the Secretary of State.
- The Upper Tribunal held that the observation in paragraph 9.9 was flawed on the basis that the judge did not consider that Chikwamba would apply where the applicant was not seeking leave to settle in the UK. They decided the matter afresh and concluded that there were factors in favour of granting leave and only one factor against, that being the public policy of requiring the applicant to seek leave to enter from his home state. On that analysis this was classic Chikwamba territory, and given their assessment that the only factor militating against granting Article 8 relief was the failure to apply from the home state, there was only one rational decision open to the Tribunal, namely that the appellant should be given entry clearance.
- With all due respect to the Upper Tribunal, I do not think that this is a fair reading of paragraphs 9.8 and 9.9 of the immigration judge's decision. First, the contrast which the immigration judge makes at paragraph 9.9 between the instant case and Chikwamba is, in my judgment, saying no more than that any separation will have far less serious consequences than would the separation in Chikwamba since the period for which leave was sought and required was limited. The wife was not settled in the UK but was present only as a student. The judge is not in my view saying that the principle in Chikwamba could not apply in this situation.
- Second, on a fair reading of those paragraphs I do not agree that the immigration judge has dismissed the Article 8 application simply on the formalistic basis that the application should be renewed from Pakistan because rules should be obeyed.
- On the contrary, the judge has focused on three matters which go both to the substantive merits of an Article 8 claim and are also relevant to the question whether it was in any event legitimate to require the applicant to make his application from Pakistan. The first is that as persons only permitted to be temporarily in the UK, neither the applicant nor his wife had any legitimate expectation of a right to remain. The second is that the family life could continue in Pakistan, although the wife would for obvious reasons not wish to return. The third was than any period of separation would be short. In Chikwamba Lord Brown specifically identified the length and degree of family disruption as a factor which would be highly relevant to the question whether it is proportionate to insist that the application be made from abroad. At the time of the decision the period of study was to end in November 2011 and the wife's entry visa came to an end even earlier that that, in March 2011, and so there would be only a relatively brief period of separation even if the wife chose to continue her studies in England.
- In my judgment, these were all proper considerations to weigh in the balance when considering the merits of the Article 8 claim. As the Secretary of State pointed out in her submissions, there is strong Strasbourg and domestic authority to the effect that only in exceptional circumstances will a couple who have formed a union in full knowledge of the precarious immigration status of either of them be entitled to remain pursuant to Article 8 rights: see Y v Russia  51 EHRR 21 paragraph 104.
- In view of this, the Upper Tribunal was not, in my opinion, justified in concluding that the only factor militating against the application of Article 8 was the fact that the applicant had not made his application from Pakistan. On the contrary, there were cogent factors justifying the conclusion that Article 8 was not infringed by requiring the appellant to return to Pakistan. In my judgment, there was no error in the approach of the immigration judge, and the Upper Tribunal erred in holding to the contrary.
- It follows that it was not open to the Upper Tribunal to re-assess the relevant considerations and reach its own decision on Article 8. In any event, when it did so its assumption that the only factor weighing against the Article 8 claim was the fact that the applicant had pursued his claim from the UK invalidates its reasoning. So even if there had been an error by the immigration judge entitling the Upper Tribunal to reach its own decision, I would not have upheld the particular conclusion it reached.
- It follows that the Secretary of State's appeal succeeds.
Arvin Treebhowan (Mauritius).
- In this case the appellant entered the United Kingdom on 25 January 2003 with a valid entry clearance as a student. That leave was extended until 31 May 2005 and he was granted further leave to remain as a spouse of a student dependent. He worked full time in order to support his wife while she was studying between 2005 and 2009. The marriage broke down and he left the matrimonial home in July 2010 just a few months before the current visa was due to expire.
- In October 2010 his estranged wife returned to Mauritius and he applied on 31 October 2010 for further leave to remain as a student in order to follow an advanced diploma in business information systems at the London Business Academy. He sought to bring himself within the terms of the Immigration Rules and in particular rule 245ZX(b).
- The Secretary of State refused this application on the grounds that the terms of that rule were not satisfied.
The hearing before The First Tier Tribunal.
- In the appeal before the First Tier Tribunal it was conceded by counsel acting for the appellant that the appellant did not fall within the terms of the rules. His current leave to remain as a dependent spouse did not bring him within any of the categories set out in rule 245ZX(b). The immigration judge confirmed that this was the case whilst recognising that the appellant did satisfy the funding element of the rules. He could support himself without the need for public funds.
- The appellant's submission was that the refusal to grant leave constituted a disproportionate interference with his private life contrary to Article 8. The judge accepted that in accordance with the tests in Razgar there was an interference with the private life of the appellant but he held that the interference was in pursuit of the lawful maintenance of effective immigration control and it was proportionate. The judge rejected the notion that the appellant had any residual family life following the separation from his wife.
- The judge had regard to a number of factors in determining whether the interference was proportionate, including the fact that the appellant was 28, in good health, and had lived in Mauritius for 20 years; that he had lived in the UK for some 8 years; that he had parents living in Mauritius; that he had started his current course and had paid £1,500 towards the fees; but also that he had taken that step without waiting for the decision from the Secretary of State. He had no justifiable expectation of being allowed to remain in the UK unless he could satisfy the one of the immigration rules.
- The judge considered that the weight attached to the public interest in effective immigration control by the Secretary of State was justifiably high and that it would normally outweigh the individual's right to private life.
- The judge then made the following observation, which is relied upon by the respondent:
"There was no intrinsic difficulty in the appellant returning to Mauritius where he could continue his studies, and it was not unreasonable to expect him to do so."
- The judge then summarised his conclusion in the following terms (para 44):
"Having considered all the evidence and submission on behalf of the Appellant in the round I find that the factors mentioned do not, individually or cumulatively, prejudice the private life of the Appellant in a manner sufficiently serious to outweigh the public interest in this case, or to amount to a breach of the fundamental right protected by Article 8 as explained by the Appellate Committee of the House of Lords in Huang, and I dismiss the Appellant's appeal under Article 8 accordingly."
- Permission to appeal to the Upper Tribunal was granted by Senior Immigration Judge King on the grounds that there was an issue as to whether the judge ought to have taken account of the Chikwamba case.
The appeal before the Upper Tribunal.
- The case before the Upper Tribunal was heard by Deputy Upper Tribunal Judge Monson. He noted that it had been conceded that the Immigration Rules did not apply and the only question was whether Article 8 conferred a right to remain. Having set out the background and the circumstances in which the right of appeal had been conferred, the judge considered the Article 8 arguments advanced before him.
- The principal submission was that the decision in Chikwamba should have been followed. It was alleged that the judge had failed properly to identify any relevant public interest which was served by the appellant's removal. The refusal was based on purely procedural grounds and counsel contended that it is precisely such cases where the ruling of the House of Lords in Chikwamba ought to apply. The First Tier Tribunal ought to have acceded to the Article 8 application.
- The judge referred in some detail to Chikwamba (although he wrongly attributed the remarks of Lord Brown to Lord Bingham), but he rejected the argument that Chikwamba was applicable for the following reason (para 16):
"But the main reason why I consider the judge did not err in law from a Chikwamba perspective is that his decision was not founded on the proposition that the appellant should return to Mauritius in order to apply for entry clearance as a student. His decision was founded on the proposition that it was reasonable for him to return on a permanent basis to Mauritius and to continue his private life there. It was the appellant's legal representative who introduced the question as to the reasonableness of the appellant returning to Mauritius in order to apply for entry clearance. She having raised the issue, the judge was entitled to express his disagreement with her submission."
- The judge also considered two further grounds of appeal which allegedly demonstrated that the immigration judge had failed properly to apply the proportionality requirement. The first was an argument based on the authority of Pankina v Secretary of State for the Home Department  EWCA Civ 719 to the effect that the public interest in requiring the appellant to leave was weak because he could fund his current course of study and therefore he did in substance meet the terms of the relevant immigration rules. The judge considered that this principle did not apply because this was not just a relatively trivial failure to meet the terms of the rules. It was more substantial because the course of study for which he had previously been granted entry clearance was not the one he was now seeking to pursue. The judge held that:
"the considerations in the appellant's favour are readily outweighed by the public interest in the economic well being of the country and also in the protection of the rights and freedoms of others, and the prevention of disorder."
- The second ground relied on a passage from the judgment of Mr Justice Blake in R (Mansoor ) v Secretary of State for the Home Department  EWHC 382 where he said this (para 34):
"The terms of the immigration regulations are not themselves a legitimate aim within the context of Article 8.2, but as has repeatedly been pointed out, maintaining the system of immigration control is a means of protecting the economic well being of the country and may thus justify an interference with family life."
- Counsel contended that the immigration judge had therefore erred in law in stating in general terms that the need for immigration control justified the interference with the applicant's personal life.
- The Upper Tribunal judge rejected this submission on the basis that it was unnecessary for the judge to have to spell out in terms that the reference to immigration control involved a reference to the economic well being of the country.
Grounds of appeal.
- There are now four principal grounds of appeal which in part raise issues not advanced in the Upper Tribunal.
- The first is that it is said that the immigration judge adopted an inappropriately restrictive interpretation of paragraph 245ZX(b). Reliance is placed on the Pankina case to support the proposition that a broad and purposive construction of the rule should have been adopted. The rule is sufficiently ambiguous that if such a construction had been adopted, it would have resulted in the conclusion that the appellant had complied with the Immigration Rules. Furthermore, since the applicant could fund his studies, he did not fall foul of the mischief which the rules were designed to meet.
- I wholly reject that submission. It was conceded before the immigration judge that there was no compliance with the rules, and as the Right Honourable Sir Richard Buxton pointed out when refusing leave on paper, it is too late to contend otherwise now.
- I would add that in any event I do not see how on any view the applicant could be said to have complied with the rule. This should establish that he was last granted leave to enter as a student and he plainly was not. Nor in my view is counsel right to say that the switch in courses in this case does not engage the mischief which the rules are designed to meet.
- The second ground takes issue with the way in which the Upper Tribunal judge sought to justify the decision to send the appellant back home by relying in general terms on the need to comply with the immigration rules. Counsel contends that the justification had to be fact specific, relying on the passage from the judgment of Blake J in Mansoor, recited above. He says that with respect to this particular appellant, there was no basis at all for saying that he would be a drain on the economy, or would be a threat to the good order of the state, or that his presence would interfere with the rights and freedoms of others. I do not accept that any specific risk of that kind needs to be identified with respect to the particular individual in order to justify a rejection of the Article 8 claim. Nor do I think that this was what Blake J was saying; he was simply emphasising that it is not a complete answer to an article 8 claim to say that the immigration rules were not complied with. It would wholly undermine effective immigration control if the Secretary of State had to discharge such a burden, identifying a specific risk with respect to each applicant who was asserting an Article 8 claim outside the rules. It would also be inconsistent with the observation of Lord Bingham in Huang v Secretary of State for the Home Department  UKHL 11, paragraph 20 to the effect that in practice it would be relatively rare for Article 8 claims to be sustained where an appellant could not remain in the UK in accordance with the Immigration Rules themselves. If this submission were correct, it seems to me that such claims would routinely succeed.
- The third ground of appeal is also directed to the Article 8 balancing exercise. It was submitted that on any view the appellant had almost complied with the terms of the Immigration Rules – his failure to do so was what counsel described as a "near miss" – and that the Pankina case shows that this is a factor of importance which ought to have weighed with the judge when determining whether any Article 8 interference is proportionate.
- Whatever the merits or otherwise of that argument, it cannot now be sustained in the light of the decision of this court in Miah & Ors v Secretary of State for the Home Department  EWCA Civ 261. In that case the appellant contended that the weight to be given to non-compliance with the rules must diminish where the applicant is nearly or almost compliant with them. The court noted that there was a conflict of authority about this. The "near miss" argument had been rejected by this court in Mongoto  EWCA Civ 751 in a judgment given by Laws LJ; and also in the case of Rudi  EWCA Civ 1326, in a judgment given by Carnwath LJ where he said in terms that the law "knows no near miss principle". A different approach was taken by the court in Pankina in a judgment given by Sedley LJ.
- In Miah this court (Lord Justice Maurice Kay, Lord Justice Stanley Burnton, Lord Justice Lewison) considered these authorities and for various reasons preferred the approach in Mongota and Rudi to the obiter observations of Lord Justice Sedley in Pankina. That decision is binding on this court and it follows that the "near miss" argument raised in support of the Article 8 claim cannot be sustained.
- Finally, counsel contended that the decision to refuse the appellant leave to remain was inconsistent with the Chikwamba principle. He contended that the only real reason why the appellant was being sent back to Mauritius was a procedural one; namely so that he should apply from that country for entry clearance. Moreover, counsel submits that any such application would inevitably succeed. This, it is submitted, is precisely the circumstance where Chikwamba applies. To compel the appellant to return to Mauritius to make his application there is to impose a wholly unnecessary and formal requirement which achieves no legitimate objective so far as immigration control is concerned.
- In my judgment, that is a mis-reading of the decision of the first tier immigration judge. It is entirely plain from his reasoning that he did not make his decision on a procedural basis at all. As the Upper Tribunal judge pointed out in paragraph 16 his decision, reproduced at paragraph 65 above, the immigration judge has considered the merits of the Article 8 claim and rejected it. True it is that the immigration judge added that any subsequent application could be lodged from Mauritius, but as the Upper Tribunal rightly found, he did not dismiss the application on that basis. The final paragraph of his determination, reproduced at paragraph 61 above, in my judgment makes this plain beyond doubt. The judge carried out a full proportionality assessment considering the merits of the claim. Chikwamba has no application in those circumstances. The case is similar to SZ, discussed above at paragraph 22, where the court held that Chikwamba was irrelevant to the application.
- I would therefore dismiss the appeal in this case.
- I would uphold the Secretary of State's appeal in the Pakistan case and dismiss the appeal in the Mauritius case.
Sir David Keene:
- I agree.
Lord Justice Maurice Kay:
- I also agree.
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