England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/04/2013

Mr Justice Turner:

Background

1. The claimant, a Chinese national, entered the UK in September 2003 pursuant to an entry clearance issued on 24 June 2003. Thereafter, under successive extensions of her leave, she was permitted to remain in this country as a student. By 2009, the claimant hoped to start work as a research associate at the University of Ulster which had issued her with a certificate of sponsorship. To this end, she submitted an application to remain as a skilled worker under the category of "Tier 2 (General) Migrant". This application was successful and the claimant started work on 1 August 2009.
2. Unfortunately for the claimant, in 2011 her employment, which had been funded by the Department of Employment and Learning, was terminated when the Department decided not to continue to subsidise the post. This development must have cast something of a shadow over a happier aspect of the claimant's life. For some months she had been planning to marry Dr Ng, who is the interested party in this case. They had been going out together for the previous three years. In the event, their wedding went ahead on 29 July 2011. By this time the claimant was twenty nine years old and had lived in this country for nearly eight years. Both her relationship with Dr Ng and the marriage by which it was consecrated were entirely genuine. No-one has ever sought to suggest otherwise.
3. Luckily, soon after the claimant had lost her job, a vacancy arose for an alternative research associate position at the University. She was interviewed for the new role and was successful. She was offered the job in July 2011. But there was a catch. The University made it a condition of her taking up her employment that she must have leave to be in the UK on a visa which was not dependent upon a certificate of sponsorship.
4. In the meantime, the claimant's husband was in the process of applying for an extension of his visa under the class: "Tier 1 (Post-Study Work)". The purpose of this category (which has since been closed) was to allow the UK to retain the most able international (non-European) graduates who had studied here with a view to those graduates moving on promptly to skilled work.
5. The solution which the claimant hit upon to resolve her visa problem was to seek to re-categorise her status. If, as was confidently expected, the claimant's husband were to be successful in his outstanding application then the claimant would fall into the category of "Partner of a Relevant Points Based System Migrant". For convenience of reference, I will hereinafter refer to the category from which the claimant wished to move and the category into which she aspired to move as "General" and "Partner" respectively.
6. Hoping to be able to take this option, the claimant consulted solicitors who advised that she could, indeed, go down this route but in order so to do she would have to return to China and make her application there. Alternatively, she could stay in the UK until after her visa had expired and then seek to challenge any attempt to remove her on human rights grounds by way of appeal to the First-Tier Tribunal. The claimant was reluctant to overstay because she would thereby be guilty of a criminal offence. It is also speculated that even if her decision to overstay were subsequently vindicated by the Tribunal there could be a residual risk that in some jurisdictions her immigration record would be perceived (rightly or wrongly) to have been blemished.
7. However, returning to China meant that the claimant would be separated from her husband for as long as it took for the application to be made, processed and accepted. He was not able to join her because his passport was, at the time, in the possession of the UKBA pending the determination of his own application.
8. Time was running out for the claimant. The University had told her that her job offer could not be held open indefinitely. Furthermore, by letter dated 2 September, the Secretary of State, having learnt that the claimant had lost her first job, told her that the expiry of her leave to remain under the "General" visa had been brought forward to 1 November 2011.
9. The claimant concluded that she would have no option but to go back to China and stay there for as long as it took to surmount the bureaucratic hurdles which there awaited her before she could expect to be granted leave to re-enter the UK as a "Partner". The prospect of being separated from her husband caused the claimant to suffer a level of stress and anxiety which led to a visit to her GP on 13 September 2012. He diagnosed a mild depression and prescribed anti-depressants.
10. On 15 September 2011, the claimant returned to China in the expectation that the sooner she started the process, the sooner she would be able legally to return to the UK. In due course, as had been expected, her husband was informed that he had been issued with a "Post-Study Work" visa and her solicitors were equipped to make the necessary application on her behalf for her entry clearance under the "Partner" category.
11. Entry clearance was granted on 25 October 2011 and communicated to the claimant on 12 November 2011. Regrettably, by that time, the University had lost patience and had withdrawn the job offer.
12. The claimant now seeks to challenge, by way of judicial review, the legality of that immigration rule the implementation of which her solicitors had advised her was the basis upon which she could not make an application for a "Partner" visa unless she returned to China so to do.

The immigration rules

13. Section 1(4) of the Immigration Act 1971 provides:

"The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom."

14. Section 3(2) provides:

"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances…"

15. In MO (Nigeria) v Secretary of State for the Home Department [2009] 1 WLR 1230, at para. 6 Lord Hoffmann held:

"The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under section 84(1) of the Nationality, Immigration and Asylum Act 2002 , one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules."

16. The defendant concedes that the immigration rules ("the Rules") are susceptible to judicial review but denies that such review is apt in the circumstances of the present case.

The "Partner" visa

17. The rule which is central to this claim falls within Part 8 "Family Members". In particular, rule 319C sets out the requirements for entry clearance or leave to remain. It states:

"To qualify for entry clearance or leave to remain as the Partner of a Relevant Points Based System Migrant, an applicant must meet the requirements listed below. If the applicant meets these requirements, entry clearance or leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused."

18. There follows a list of requirements each one of which must be satisfied to ensure that the relevant application will be granted. It is agreed that, with one exception, the claimant was in a position to satisfy all of these requirements.
19. For her, the fly in the ointment was the eighth requirement which, in as far as is relevant, states:

"(h) An applicant who is applying for leave to remain, must have, or have last been granted, leave:

(i) as the Partner of a Relevant Points Based System Migrant…"

20. In this case, the claimant had been granted leave previously not as a "Partner" but under the "General" category. She was therefore precluded from making an application for leave to remain in the UK. However, requirement (h)(i) is worded so as to be a bar only to applications for leave to remain and not to entry clearance. By definition, however, an application for entry clearance cannot be made within the UK. Accordingly, the claimant had to first leave the UK before she could circumvent the obstacle imposed by paragraph (h)(i).
21. It is to be noted that rule 319C is framed in mandatory and unambiguous terms.

The Convention

22. The claimant alleges that requirement (h)(i) is unlawful and seeks a declaration to this effect.
23. The fact that compliance with the rule resulted in the claimant being separated from her husband for about two months is contended to be contrary to her rights under Article 8 of the European Convention as a disproportionate interference with her family and private life.
24. Article 8 provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

25. The question arises, therefore, as to whether a blanket rule such as that articulated in requirement (h)(i) is compatible with Article 8.

Immigration and Article 8

26. The questions arising within the context of the competing interests of the state and the individual in cases involving immigration were identified by the House of Lords in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368. Lord Bingham held at paragraph 17:

"In a case where removal is resisted in reliance on article 8, …[the] questions are likely to be:

(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?

(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(3) If so, is such interference in accordance with the law?

(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"

27. At paragraph 20 Lord Bingham concluded that:

"Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."

28. In Huang v Secretary of State for the Home Department [2007] 2 AC 167 the House of Lords clarified the meaning of paragraph 20 of Razgar, confirming that it was intended to be no more than a prediction of the small number of removal cases in which the interference with the claimant's Article 8 rights would be disproportionate to the interests of the state. It did not purport to create an extra hurdle of "exceptionality" for the claimant to surmount.

Out of country applications and Article 8

29. In Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 1420 the claimant, a Zimbabwean national, arrived in the United Kingdom in April 2002 and sought asylum. The Secretary of State refused her claim but added that, because conditions in Zimbabwe had deteriorated, he had decided to suspend removals of failed asylum seekers to Zimbabwe. That suspension was not lifted until November 2004. In September 2002 the claimant married a Zimbabwean national who had been granted asylum. In 2003 the Secretary of State refused her claim that to remove her to Zimbabwe as a precondition of her applying to remain in the UK would breach her right under Article 8 to respect for her family life. The adjudicator dismissed her appeal on the ground that, although conditions in Zimbabwe were "harsh and unpalatable", she had not established a case under Article 8. In April 2004, a daughter was born to the claimant and her husband. In January 2005, the Immigration Appeal Tribunal dismissed her appeal essentially on the basis, in accordance with the Secretary of State's policy under Article 8, that she could and should return to Zimbabwe to apply there for entry clearance to return to the UK and that her separation from her husband, who it accepted faced an insurmountable obstacle to his own return to Zimbabwe, would be for a relatively short period. The Court of Appeal dismissed her appeal.
30. The House of Lords unanimously overturned the decision of the Court of Appeal. Lord Brown, with whose opinion all other members of the Judicial Committee agreed, rejected the suggestion that a claimant should never be required to leave the UK to apply for entry clearance abroad. Nevertheless, he went on to deal with the narrower issue as to whether the Secretary of State's "Policy Instruction" on the issue was reconcilable with her obligations under Article 8. He found that they were not.
31. The Policy under scrutiny provided:

"Is the interference proportionate to the permissible aim? … In many cases, refusal or removal does not mean that the family is to be split up indefinitely. The … policy is that if there is a procedural requirement (under the Immigration Rules, extra-statutory policies or concessions) requiring a person to leave the UK and make an application for entry clearance from outside the UK, such a person should return home to make an entry clearance application from there. In such a case, any interference would only be considered temporary (and therefore more likely to be proportionate). A person who claims that he will not qualify for entry clearance under the rules is not in any better position than a person who does qualify under the rules—he is still expected to apply for entry clearance in the usual way, as the entry clearance officer will consider article 8 claims in addition to applications under the rules… In addition, it may be possible for the family to accompany the claimant home while he makes his entry clearance application, in which case there will be no interference at all. For example, where a claimant is seeking to remain here on the basis of his marriage to a person settled in the UK, the policy is that they should return home to seek entry clearance to come here as a spouse under the relevant immigration rule. Where the spouse can accompany the claimant home while he makes his application, there will be no interference. Where this is not possible, the separation will only be temporary. The fact that the interference is only for a limited period of time is a factor that is likely to weigh heavily in the assessment of proportionality."

32. The main justification advanced on behalf of the Secretary of State to justify this approach was that those who had arrived in the UK without entry clearance should not be allowed to jump the queue of those applying from abroad. Lord Brown was unimpressed by this proposition doubting that those applying from abroad would have to wait any longer than they would otherwise have had to do or that they would feel a sense of unfairness that others had not been required to return to their countries of origin before making a claim.
33. A better justification, although not one apparently advanced on behalf of the Secretary of State, was identified in para. 41 of the opinion of Lord Brown:

"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?"

34. Notwithstanding the weight of this consideration, Lord Brown was not persuaded that it was sufficiently strong to support the line taken in the published Policy. He held at 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."

35. Lord Scott held at paragraph 4:

"Not many would dispute, and I do not, that would-be immigrants who desire to remain permanently in this country should apply for permission to do so before coming here. It is the Government's policy that that should be so and that a failed asylum seeker should return, or be returned, to his or her country and make from there any applications for the right to reside in this country that he or she desires to make. But policies that involve people cannot be, and should not be allowed to become, rigid inflexible rules. The bureaucracy of which Kafka wrote cannot be allowed to take root in this country and the courts must see that it does not."

36. Baroness Hale observed at para. 8 that:

"Even if it would not be disproportionate to expect a husband to endure a few months' separation from his wife, it must be disproportionate to expect a four-year-old girl, who was born and has lived all her life here, either to be separated from her mother for some months or to travel with her mother to endure the "harsh and unpalatable" conditions in Zimbabwe simply in order to enforce the entry clearance procedures."

Chikwamba and requirement (h)(i)

37. On the face of it, the wording of requirement (h)(i) would appear difficult to reconcile with the approach of the House of Lords in Chikwamba to the issue of "out of country" applications. The wording of requirement (h)(i) admits of no exceptions to the imperative that those wishing to change their visa from "General" to "Partner" status must, without exception, leave the UK so to do.
38. It is now, therefore, necessary to analyse the contentions raised by the Secretary of State in justification of retaining requirement (h)(i) as presently drafted.

Could the claimant have circumvented requirement (h) by relying on Rule 2 or making an "Outside the Rules" application?

39. Rule 2 of the Rules provides:

"Immigration Officers, Entry Clearance Officers and all staff of the Home Office Immigration and Nationality Directorate will carry out their duties without regard to the race, colour or religion of persons seeking to enter or remain in the United Kingdom and in compliance with the provisions of the Human Rights Act 1998."

40. It is submitted on behalf of the Secretary of State that the claimant could and should have argued that reading requirement (h)(i) in the light of rule 2 would have equipped her to make at least a case for advancing her application to switch her visa status without leaving the country.
41. Alternatively, it is argued that the claimant ought to have applied to the Secretary of State to exercise her discretion "outside the rules" to allow the claimant to remain in the country.
42. Specifically, these alleged failures were relied upon by the Secretary of State to support the suggestion that the claimant had not exhausted alternative remedies before travelling to China to fulfil requirement (h)(i) and that, on this ground alone, I should exercise my discretion not to embark on an analysis of the substantive merits of the application for judicial review.
43. I find these arguments to be unappealing.
44. In particular, requirement (h)(i) does not lend itself to any interpretation which leads to any conclusion but that if a claimant wants to switch from "General" to "Partner" status she must leave the country so to do. It is hardly surprising that the claimant's advisors were unenthusiastic about their prospects of success if they were to raise the argument that rule 2 could be deployed so as to circumvent the consequences of the adamantine wording of requirement (h)(i). Indeed, I find that the Secretary of State was entirely satisfied that requirement (h)(i) did comply with Article 8 as it stood and that no amount of ingenuity of argument would have persuaded her otherwise. If this were not the case then requirement (h)(i) would not have been drafted in such black and white terms in the first place.
45. Support for this view can be derived from the fact that since 12 July 2012, prior to the publication of new immigration rules, the Home Office published its "Statement of Intent: Family Migration", June 2012 which summarised the changes made in respect of Article 8 as follows:

"First, we shall end the situation where those claiming the right to enter or remain in the UK on the basis of ECHR Article 8 – the right to respect for private and family life – do so essentially without regard to the Immigration Rules. The new rules will fully reflect the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government's and Parliament's view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis."

46. It is to be noted, significantly, that requirement (h)(i) still remains in force, as at April 2013, with its precise wording intact. This tends to show that the Secretary of State continues, on the face of it, to regard the requirement as one which, as it stands, substantially reflects the factors which can weigh for or against an Article 8 claim within the likely factual scope of its application.
47. Moreover, in a letter dated 18 October 2012, the Home Office asserted:

"…we consider the right to respect for family life to be a relevant consideration in the design of the Rules that apply to this category."

From this it must further be concluded that the Secretary of State considers that requirement (h)(i) is Article 8 compliant per se.

48. Indeed, this stance has remained one consistently adopted by the Secretary of State throughout the history of these proceedings. In paragraphs 83 and 84 of her skeleton argument dated 11 March 2012, she continues to maintain that the Rules as presently drafted are based on a sensible reason for requiring the claimant to apply for entry clearance from her country of origin and that this reason is sufficient to discharge her duty under Article 8.
49. For these reasons I am unpersuaded that the wording of rule 2 should have led the claimant's legal advisors to conclude that there was a realistic prospect that they could successfully argue that it operated in her case so as to disapply the unambiguous wording of requirement (h)(i).
50. Furthermore, I find the alternative suggestion that the claimant should have applied "outside the rules" to be no more attractive.
51. Notwithstanding the immense detail to be found within the Rules as presently drafted, it is rightly considered that it is appropriate for the Secretary of State to retain a residual discretion to grant leave in certain cases which do not fall within their scope. To this end, a claimant can fill in a form "FLR(O)" setting out the basis upon which she seeks relief "outside the rules".
52. In this case, the Secretary of State contends that the claimant's claim should be dismissed in the exercise of the court's discretion because she did not pursue this option.
53. In the case of R (Quila) v Secretary of State for the Home Department [2012] 1 AC 621 the Supreme Court was concerned with rule 227 (as amended) which was framed in correspondingly unambiguous terms to rule 319C. That rule imposed a blanket prohibition against the granting of leave to enter or remain as the spouse of someone lawfully settled and present in the UK where either party to the marriage was under the age of 21. Before the amendment, the threshold age had been 18.
54. The justification behind this amended provision was that it was a valuable tool to discourage forced marriage.
55. At first instance in Quila, the scope of the "out of rules" discretion was addressed. The Secretary of State's letter of refusal dealt with the point in the following terms:

"…Article 8 is not breached by our refusal. The Secretary of State's policy is not to exercise discretion unless there are clear exceptional compassionate circumstances which have not previously been considered and which merit the exercise of discretion outside the Immigration Rules."

56. In the course of his submissions to the Supreme Court in Quila, counsel for the Secretary of State raised identical arguments to those which have been deployed in the present case. He said:

"In any event, the effect on innocent young couples is temporary…and is mitigated by the ability to disapply the rule in exceptional compassionate circumstances."

57. This argument did not, however, prevent Lord Wilson from expressing his opinion in the most emphatic terms at para.59:

"I consider that, while decisions founded on human rights are essentially individual, it is hard to conceive that the Secretary of State could ever avoid infringement of article 8 when applying the amendment to an unforced marriage. So in relation to its future operation she faces an unenviable decision."

58. In response to these observations, the Secretary of State revoked the amendment.
59. Furthermore, it is desirable that the Rules, where reasonably practicable, should identify any significant qualifications to their application where, as a matter of practice, such qualifications are likely to arise. This avoids the real risk that applicants who read the Rules in good faith will simply take them at face value when there are expressed in unequivocably mandatory terms and that they will thereby be misled.
60. For example, rule 281 of the Rules establishes the English language requirement imposed upon the spouses of those already present and settled in the UK who are seeking leave to enter. This requirement is, however, mitigated by the wording of rule 281 (i)(a)(ii)(c) which provides for the requirement to be waived where there are "exceptional compassionate circumstances that would prevent the applicant from meeting the requirement". The drafting of this rule demonstrates that it was considered to be preferable to identify the existence and scope of a discretion (even one so narrow as to operate only in exceptional circumstances) within the rule itself rather than for the residual discretion of the Secretary of State to be seen as a legitimate fallback. Clearly, there will be many types of case in which it is quite impossible (or, at least, disproportionately difficult or time-consuming) to identify, in advance, what, if any, circumstances may arise justifying a waiver of the full force of the rules. These are cases in which the "out of rules" discretion is properly to be exercised. Nevertheless, where it is readily apparent that such circumstances are likely to arise in a significant number of cases it is far better that this should be openly acknowledged in the drafting of the rule itself. The "out of rules" discretion should not be deployed as a universal panacea to sustain the viability of any rule which is drafted in bright line terms but which, in reality, is predictably subject to potentially significant numbers of valid Convention challenges where it would be reasonably straightforward to draft (or redraft) the rule itself to avoid this consequence.
61. Furthermore, the Secretary of State has consistently maintained in these proceedings that this is not a case in which she would exercise her discretion "outside the rules" in any event.
62. In consequence of the above, I am satisfied that it is not a bar to this application that the claimant did not pursue the alternative remedies relied upon by the Secretary of State. Accordingly, the aptness of requirement (h)(i) to reflect the obligations arising under Article 8 must be adjudicated upon with reference to a proper interpretation of the wording of the requirement itself. Thus neither rule 2 nor the Form FLR(O) procedure can plausibly be relied upon to protect it from direct scrutiny. Even in the event that I were to have decided that these alternative procedures offered more tempting routes of challenge than I have found to have been the case I would still have exercised my discretion to entertain this application for judicial review on the grounds that the claimant genuinely and reasonably believed that the wording of the Rules themselves precluded her from making an "in country" application.

Can Chikwamba be distinguished?

63. The Secretary of Sate seeks to distinguish the case of Chikwamba in a number of respects.
64. It is asserted that this claimant's case is different to the extent that her claim is to stay in the UK for a fixed period whereas in Chikwamba the claim was in respect of an indefinite period. However, I see no greater policy justification for separating wife from husband where an application is for a fixed period than for an indefinite one. It is certainly a distinction between the cases but one which, in my view, is without a difference.
65. Additionally, the Secretary of State places heavy reliance upon the fact that there are no children to consider in this case.
66. The involvement of children of the family must weigh heavily indeed in the Article 8 balance and it is clear that in Chikwamba this factor was given very considerable weight. Nevertheless, there is no suggestion from the opinion of Lord Brown that the absence of children should mean that it would only be in rare cases that Article 8 rights would prevail. On the contrary, the sort of exceptions he was particularly willing to entertain were those where the applicant had a poor immigration record and thereby fell squarely into the category of those for whom the deterrent effect of the threat of having to leave the UK in order to make an application would be the most proportionate.
67. In MA (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 953, Sullivan L.J. with whom the other members of the Court of Appeal agreed held at para. 7:

"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."

68. I must also bear in mind that requirement (h)(i) does not admit of any exception in the event that there are children of the relevant partnership and so, even if the children factor were of decisive importance in the circumstances of the present case, it does not impact significantly on the aptness of the wording of the requirement itself.
69. On a broader basis, the Secretary of State contends that Razgar continues to be the touchstone by which the scope of Article 8 issues should be approached. That is undoubtedly true. But it is also evident that in a succession of recent decisions the courts have recognised that the application of Razgar principles, as seen through lens of Chikwamba, leads to the conclusion that an Article 8 compliant requirement for an applicant to leave the UK before making an application is the exception rather than the rule. Some examples will illustrate this.
70. In VW (Uganda) V Secretary of State for the Home Department [2009] EWCA Civ 5, Sedley L.J. held at para. 43:

"It has in the past been urged by the Home Office that there is relatively little hardship in breaking up a family by removal where the removed spouse can immediately apply for entry clearance in order to return. The decision of the House of Lords in Chikwamba [2008] UKHL 40, for reasons which it is not necessary to reproduce here, has called a halt to this false logic. The likelihood of return via entry clearance should not be ordinarily treated as a factor rendering removal proportionate; if anything, the reverse is the case."

71. In LM (Article 8 - married appellant - proportionality) Jamaica [2010] UKUT 379(IAC) the Upper Tribunal held at paragraph. 20:

"We readily accept that since the decision of the House of Lords in Chikwamba [2008] UKHL 40 it is rarely open to the SSHD to suggest that an appellant should leave the country and apply from abroad to join his spouse."

72. The reason why a valid distinction is drawn between cases where an applicant faces permanent removal and those where the length of the removal is contingent upon the success of an out of country application was articulated by Elias L.J. in Hayat (Nature of Chikwamba principle) Pakistan [2012] Civ 1054 at para. 18:

"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."

73. In my view, this paragraph effectively disposes of the Secretary of State's argument that allowing applicants to switch visa status "in country" would lead to a blurring of the distinction between the two categories involved. This is just the sort of formal procedural factor that Elias L.J. was referring to. It is pertinent to observe that counsel for the Secretary of State conceded that the assessment and determination of the merits of the claimant's application would, as a matter of substance, be identical regardless of where the claimant was at the time. The only difference would be geographical.
74. Counsel for the Secretary of State referred to a number of cases in an effort to persuade the court that, in the face of repeated authoritative pronouncements to the contrary, it was still only in exceptional (or a small minority) of cases that Article 8 would frustrate the requirement that an applicant should leave the country before making an application. Despite his strenuous efforts to extract some forensic crumbs of comfort from a number of the fifty or more cases in which Chikwamba has been recently considered none of these could bear the weight of the his argument.
75. Finally, it is to be noted that the UKBA's Casework Instruction dated 7 August 2008, and ongoing in its application, states:

"Returning an applicant to his/her home country in order to make an entry clearance application may still be proportionate in a small number of cases."

76. Counsel for the Secretary of State argued that this position was consistent with his contentions. I disagree. The reference to a "small number of cases" clearly implies that returning an applicant to his/her home country will, more often than not, involve a disproportionate interference with his/her Article 8 rights.

Conclusion on requirement (h)(i)

77. I, therefore, come to the clear view that save in particular cases (such as those involving a poor immigration record – as in Ekinci v Secretary of State for the Home Department [2003] EWCA Civ 765 or where the engagement of Article 8 is very tenuous - as in R(Mdlovu) v Secretary of State for the Home Department [2008] EWHC 2089) it will be rare indeed that the immigration priorities of the state are such as to give rise to a proportionate answer to Article 8 rights to family life where requirement (h)(i) is engaged.
78. It must follow from this that the application of the blanket requirement to leave the country imposed by paragraph 319C(h)(i) of the immigration rules is unsustainable. It is simply not consistent with the ratio of the decision in Chikwamba that this paragraph, as presently worded, should continue to form part of the rules. I am not prepared, however, to make a formal declaration on the matter. It is not the function of the court to redraft the rules but I would predict that the Secretary of State would in future face difficulties in enforcing requirement (h)(i) as presently worded in all but a small number of cases in which Article 8 is engaged.

Conclusion in the present case

79. The question remains whether the present case is, on its particular facts, one in which the requirement to leave the country in order to apply for entry clearance is a proportionate one. For the reasons which follow I am satisfied that it is not.
80. There is no doubt in this case that the claimant's Article 8 rights were both engaged and infringed. She was in a loving marriage and had, as I find it, no real option but to endure separation from her new husband for about two months. She had an impeccable immigration record and both she and her husband were very likely to continue to make a valuable contribution to the economic wellbeing of the UK. Lord Brown identified the justifiable policy aim to deter undesirable persons from entering the UK unlawfully and then enjoying the luxury of making an in country application. In this case the policy considerations lie in quite the opposite direction. The claimant is the sort of applicant in respect of which immigration should be encouraged rather than deterred. Those who show the sort of promise to make a valuable contribution to the UK could only be discouraged from coming here in the first place if it were the case that if they were to marry a foreign national here then, as a matter of routine, that spouse would be required to return to his/her country of origin as a precondition of "switching" to a "Partner" visa.
81. In conclusion, although I do not strike the rule, whether to keep it in a limited form or to drop it altogether is a matter for the Home Secretary (as it was in Quila) and not for this court. I do find, however, that rule 319C(h)(i) cannot lawfully be applied to the claimant in this case.