Case No: C5/2008/3145
Neutral Citation Number: [2009] EWCA Civ 953
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IA/10123/2008]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 27th July 2009

Before:

LORD JUSTICE JACOB
LORD JUSTICE SULLIVAN
and
LORD JUSTICE PATTEN
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Between:

	MA (PAKISTAN)	
Appellant	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

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Mr S Canter (instructed by CLC Solicitors) appeared on behalf of the Appellant.
Mr J Hall (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
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Judgment
Lord Justice Sullivan:

1.	This is an application for permission to appeal with the appeal to follow if permission is granted against the determination of Immigration Judge Rowlands, promulgated on 24 November 2008, dismissing the applicant’s appeal against the respondent’s decision dated 5 June 2008 to refuse him leave to enter the United Kingdom and to cancel his continuing leave.  

2.	Shortly after the refusal decision, the House of Lords’ decision in Chikwamba v Secretary of State [2008] UKHL 40 was published on 25 June 2008.  In paragraph 17 of the respondent’s decision letter, there is the following passage at the conclusion of the respondent’s discussion of the Article 8 issue:

“If the passenger wishes to enjoy his family life in the United Kingdom then it is open to him to return to Pakistan temporarily to apply for the appropriate entry clearance to join his spouse here.  Alternatively there would appear to be nothing to prevent the appellant and his spouse from enjoying their family life in Pakistan.”

3.	I refused permission to appeal on the papers.  There was a renewed oral application for permission to appeal before Moore-Bick LJ, and I gratefully adopt the summary of the factual background that is set out in paragraphs 1-3 of his judgment adjourning that renewed oral application.  

1.	The applicant in this case was born in November 1984 and is now aged 24. He came to this country on an entry clearance as a student in September 2004 and in January 2006 his visa was extended to 13 October 2009. He was then taking a business management course at Middlesex University. In January 2007 the applicant was obliged to leave that course because financial support from his family was withdrawn and it became necessary for him to take up full-time employment.

2. In July 2007 the applicant married and he and his wife travelled to Pakistan, where unfortunately he fell out with his father and they returned to the United Kingdom. In January 2008 he returned to Pakistan believing that his father was ill and at that point the disagreement between them flared up again. His father retained his passport and the applicant was forced to remain in Pakistan for five months. He eventually returned to the United Kingdom on 5 June 2008. He says that he is concerned for his safety if he were to return to Pakistan because his father has influential friends.

3. Some time before the applicant returned to the United Kingdom, or possibly soon after he returned, the Secretary of State appears to have discovered that the applicant was no longer a student and cancelled his leave to remain in this country. He appealed against that decision and his appeal was dismissed, but in August 2008 a reconsideration was ordered because it was considered that the Immigration Judge had failed to consider the Human Rights implications of the decision.”

4.	The reconsideration hearing took place before Immigration Judge Rowlands on 6 November 2008.  The applicant conceded that he did not fulfil the requirements in the Immigration Rules for leave to enter, so the only issue for Immigration Judge Rowlands was whether the applicant’s removal to Pakistan, where he would be able to make a further application for permission to enter the United Kingdom as the spouse of a British national in accordance with Rule 281, was a disproportionate interference with his and his wife’s family life contrary to Article 8 of the European Convention on Human Rights (the Convention).  It was conceded by the respondent that there was family life between the applicant and his wife, and the immigration judge correctly directed himself that, in accordance with the House of Lords’ decision in Beoku‑Betts [2008] UKHL 39, the effect on the family life of both the applicant and his wife had to be considered.  

5.	Although Mr Canter in his skeleton argument on behalf of the applicant makes a number of criticisms of the immigration judge’s approach to the Article 8 question before him, it seems to me that there are two particularly striking features of this determination.  First, it is in my judgment implicit in the immigration judge’s reasoning in paragraphs 11 and 16 of the decision letter that he accepted that if this applicant was removed to Pakistan, he would be entitled to apply for entry to the United Kingdom as the spouse of a British national and, further, that his application would be likely to be successful.  The immigration judge refers to paragraph 281 in paragraph 11 of the determination and says:

“It appears on the face of it that paragraph 281 of the Immigration Rules which applies to the spouses of persons present and settled here would apply and he would be able to return without any issues.”

The immigration judge returns to the implications of that in paragraph 16 of the determination when considering what the consequences of the applicant’s removal from this country would be:

“The consequences of his removal are not grave.  They would either be apart solely for the time it takes for him to apply for leave to enter or they move together to Pakistan to live where they would both be able to find work.  I do not see any insurmountable obstacles in their way.  The fact that removal in order to reapply would be inconvenient cannot amount to such an obstacle.”

6.	When refusing the applicant leave to enter the United Kingdom, the Secretary of State had not been able to consider the House of Lords’ decision in Chikwamba.  The immigration judge was referred to Chikwamba, in which the House of Lords considered the proportionality of the Secretary of State’s then policy of invariably insisting on departure from the United Kingdom in order to satisfy entry clearance requirements under the Immigration Rules.  Lord Brown of Eaton-under-Heywood, with whose opinion all of their Lordships agreed, said in paragraph 44 of his opinion:

“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.”

7.	Notwithstanding the fact that it was submitted on behalf of the applicant that Chikwamba supported his appeal (see paragraph 12 of the determination), there appears to be no consideration in the determination, whether explicitly or implicitly, of the approach that was being urged by the House of Lords in that case.  I realise that Lord Brown referred to Article 8 cases involving children and that there are no children involved in this case, but the view that return should be insisted upon simply in order to secure formal compliance with entry clearance rules “only comparatively rarely” is not confined to cases where children are involved.  While the suggested approach in Chikwamba “certainly” applies in such cases, it also applies to family cases more generally.  Depending on the facts of the case, it may apply with more or less force.  But there is no suggestion in this determination that the immigration judge took the Chikwamba approach into account at all.  

8.	The second curious feature of the determination is in part an echo of the first.  The immigration judge dealt in paragraph 16 with the question whether there were “insurmountable obstacles” in the way of the appellant and his wife returning to Pakistan, and said that:

“The fact that removal in order to reapply would be inconvenient cannot amount to such an obstacle.”

Mr Canter criticises the immigration judge’s use of the “insurmountable obstacle” test as outdated and inappropriate in any event, and I will return to that criticism in a moment.  

9.	Looking at the particular circumstances of this case, it does appear to me that the manner in which the immigration judge applied the insurmountable obstacle test to the question of removal in order to re‑apply for leave in accordance with the Rules is the very antithesis of the approach that was urged by Lord Brown in Chikwamba.  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.  

10.	The only other paragraph in which the immigration judge dealt with the question of proportionality was paragraph 18 in which the immigration judge said:

“As to proportionality.  Here it is my task to weigh all the considerations and give due considerable weight to the considerations in favour of the decision appealed against.  In this case I find that the Appellant that I am dealing with is not entitled to succeed under Article 8.  There is nothing disproportionate about this decision.”

If there was to be a discussion of the issues raised by Chikwamba, one might have expected to find that discussion in this paragraph.  

11.	Standing back from the determination for a moment, it would appear that this is just the sort of case where any consideration of the proportionality of removal would have to take full account of the approach suggested in Chikwamba, and that was not done by either the Secretary of State or the immigration judge.  

12.	In his valiant attempts to uphold the determination, Mr Hall on behalf of the Secretary of State submitted that the immigration judge had determined the matter in the alternative.  In addition to concluding that the applicant and his wife would be apart solely for the time that it took for him to apply for leave to enter from Pakistan, there was the alternative finding:

“… or they [could] move together to Pakistan to live where they would both be able to find work.”

13.	The difficulty with that submission in my judgment is that it is plain on a fair reading of paragraph 16 that that alternative finding was very much the immigration judge’s fall back position.  His final conclusion and his reason as to why there would be very little interference with the applicant’s Article 8 rights was his conclusion that the applicant and his wife would be parted simply for the time that it took the applicant to return to Pakistan and apply for entry clearance from there.  Perhaps because the alternative conclusion was very much regarded as a fall back, it suffers from two particular deficiencies.  Firstly, the bare proposition that the applicant and his wife could move together to Pakistan to live where they would both be able to find work does not engage with the matters which had been raised in the statements of the applicant and his wife.  In those statements they explained amongst other things that the applicant had been threatened by his father, who had a lot of political connections, and the MP for the area in which the applicant’s family lived was also the applicant’s father’s business partner.  The applicant said he feared for his safety if he returned to Pakistan, and he pointed out that if he returned to Pakistan, because of the fracture to his family, he would have nowhere to stay.  Those concerns were echoed in the applicant’s wife’s statement.  She had pointed out that she had just completed her probationary period at work as a secretary, but if she went to Pakistan she would probably lose her job and in the current climate it would be difficult to find another one.  She also pointed out that she had no close family in Pakistan and they had nowhere to stay if they went there.

14.	I do not suggest that these points would necessarily have been compelling, but they deserved to be dealt with.  Perhaps the reason why they were not dealt with is because the immigration judge adopted too high a test.  It is plain in my judgment, if paragraph 16 is read as a whole, that he applied the test of “insurmountable obstacles” to the question whether or not the applicant and his wife could move together to Pakistan to live and find work there.  Mr Canter’s submission that that was an inappropriate test, and the question in the light of EB (Kosovo) [2008] UKHL 41 for the immigration judge was whether it was reasonable to expect the applicant’s wife to move to Pakistan in all the circumstances, is in my judgment well-founded.  Had the immigration judge adopted that test rather than the insurmountable obstacles test, then it is possible that he might have given more detailed consideration to the arguments of the applicant and his wife as to why it was not reasonable for them in all the circumstances to return to Pakistan.  

15.	For these reasons and notwithstanding Mr Hall’s valiant attempts to sustain the determination, I am satisfied that there was a clear error of law in both the primary basis of the decision and the alternative basis of the decision, and I would therefore grant permission to appeal and allow the appeal in order that the applicant’s appeal can be reconsidered taking those matters into account.

Lord Justice Jacob:   

16.	I agree.

Lord Justice Patten:  

17.	I also agree.

Order: Application granted; appeal allowed