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
Strand, London, WC2A 2LL
B e f o r e :
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)
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
Crown Copyright ©
Lord Justice Elias :
"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 ..... ""
"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?"
"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."
"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….."
"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."
"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."
Subsequent Court of Appeal decisions.
"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."
"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.
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.
Kizhar Hayat (Pakistan).
The First Tier Tribunal.
"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."
The hearing before The Upper Tribunal.
"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."
Arvin Treebhowan (Mauritius).
The hearing before The First Tier Tribunal.
"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."
"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."
The appeal before the Upper Tribunal.
"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 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 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."
Grounds of appeal.
Sir David Keene:
Lord Justice Maurice Kay: