|Judgments - Chikwamba (FC) (Appellant) v Secretary of State for the Home Department
Chikwamba (FC) (Appellant) v Secretary of State for the Home Department
HOUSE OF LORDS
 UKHL 40
on appeal from:  EWCA Civ 1779
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Chikwamba (FC) (Appellant) v Secretary of State for the Home Department
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Michael Fordham QC
(Instructed by TRP Solicitors)
Monica Carss-Frisk QC
(Instructed by Treasury Solicitors)
14 AND 15 APRIL 2008
WEDNESDAY 25 JUNE 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Chikwamba (FC) (Appellant) v Secretary of State for the Home Department (Respondent)
 UKHL 40
LORD BINGHAM OF CORNHILL
LORD HOPE OF CRAIGHEAD
LORD SCOTT OF FOSCOTE
BARONESS HALE OF RICHMOND
LORD BROWN OF EATON-UNDER-HEYWOOD
The basic facts
The appeal proceedings below
"[The appellant] confused two separate things: first, the substantive matter of permanent unity or break-up of a family and, secondly, the procedural means, such as entry clearance, for protecting the permanence of family unity. Procedural rules, the procedural aspect, is recognised in the immigration rules and instructions outside the immigration rules . . . [W]hat matters is the threat, if any, to the former of those two matters, to the permanent unity of the family, subject, as it is, to the provision of appropriate procedures for its protection, a matter for national resolution."
Auld LJ's judgment then continued:
"45 . . .[T]he 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 [R (Mahmood) v Secretary of State for the Home Department  1 WLR 840 ] at para 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 [R (Ekinci) v Secretary of State for the Home Department  EWCA Civ 765,  Imm AR 15 ], a case of a Turkish asylum seeker who had entered this country via Germany, put it at para 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 . . .'
"47 . . . [The appellant's] assertion that there is a presumption in such cases in favour of family unity cuts across the clear rule of Mahmood and Huang, that it is only in exceptional cases that an adjudicator or the IAT can allow article 8 considerations to prevail over the public interest in maintaining efficient and orderly immigration control."
(The reference there was to Huang in the Court of Appeal; the House of Lords later allowed Mrs Huang's appeal and held that there is no additional requirement of exceptionality in article 8 cases 2 AC 167.)
The governing legislation
"(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision . . .
(2) For the purposes of this Part, an authority acts in breach of a person's human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998."
Section 72(2) of the 1999 Act provides:
"A person who has been, or is to be, sent to a member State or to a country designated under section 12(1)(b) is not, while he is in the United Kingdom, entitled to appeal(a) under section 65 if the Secretary of State certifies that his allegation that a person acted in breach of his human rights is manifestly unfounded".
The rival arguments
Mr Fordham QC advances two alternative arguments. His first and wider submission is that in all human rights cases section 65 gives (subject only to section 72(2)(a)) an unqualified in-country right of appeal. True it is that certain of the immigration rules specify a requirement for entry clearance (as here, requirement (v) of rule 352A and requirement (vi) of rule 281) and that rule 28 provides that an applicant for entry clearance must be outside the UK at the time of the application. But in dismissing an appeal on the basis that the appellant must properly seek leave to enter from abroad, Mr Fordham argues that the appellate authorities are in effect depriving appellants of their statutory right to an in-country appeal. Such an appeal can be denied them only when the Secretary of State certifies, pursuant to section 72(2)(a), that the appellant's claim (here, that to remove her to Zimbabwe would breach her article 8 rights) is "manifestly unfounded". And such a certificate, he submits, can only properly be given when long-term removal is clearly permissible.
The respondent contests both submissions. There is nothing in section 65, submits Ms Carss-Frisk QC, to preclude the appellate authorities from deciding an appeal on the basis that the appellant must seek entry clearance abroad. The appellate authority is not thereby denying the appellant his or her in-country appeal; rather it is determining the appeal and deciding that it is necessary and proportionate in the interests of immigration control that any longer-term right to be in the UK should be decided whilst the appellant is abroad.
The possibility of successive section 65 appeals
"Firm immigration control requires consistency of treatment between one aspiring immigrant and another. If the established rule is to the effectas it isthat 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."
"nothing even arguably disproportionate in requiring this appellant to return to Germany for the relatively short space of time that will elapse before he is then able to have his entry clearance application properly determined, if necessary outside the strict rules. That the Secretary of State is not contemplating or intending any longer-term, let alone permanent, separation of the appellant from his family seems to me abundantly plain . . ."
"It would . . . seem somewhat paradoxical if the stronger an appellant's perceived case for entry clearance under the immigration rules the more likely he or she is to be removed. Yet, . . . on the basis of the reasoning of the tribunal in this case, that would be the inevitable consequence."
The Court of Appeal's judgment referred to Mahmood, Ekinci and Chikwamba (the present case).
The wider argument
The narrower ground
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 ruleshe is still expected to apply for entry clearance in the usual way, as the ECO will consider article 8 claims in addition to applications under the rules. See Ekinci...
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."
"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 ruleshe is still expected to apply for entry clearance "
And for the reasons given in para 36 above it is, indeed, entirely understandable why someone outside the rules should not be better off. Oddly, however, when asked to explain why in those circumstances the appellant in Beoku-Betts v Secretary of State for the Home Department  UKHL 39, seeking to remain here to enjoy family life with his emotionally dependent mother, was not first required to apply for entry clearance abroad, the Secretary of State (in a post-hearing note) said:
"Mr Betts did not . . . on the face of it fall within the scope of any relevant immigration rule designed to enable him to enjoy family life in the United Kingdom. In those circumstances it was not argued that Mr Betts should return to Sierra Leone to apply for entry clearance to join his family in the United Kingdom."
I cannot reconcile that explanation with the stated policy. Nor has any explanation been offered as to why the policy was not applied also to the appellant Mr Kashmiri in Huang, who did not qualify under a rule requiring entry clearance but who was asserting a family life claim to remain here under article 8.