R on the application of Zhang v Secretary of State for the Home Department  EWHC 891 (Admin) - case summary
This case concerned a challenge by way of Judicial Review of the legality of paragraph 319C(h)(i) of the Immigration Rules. This requires those who are applying for leave to remain as the partner of a relevant Points Based System (‘PBS’) Migrant to have, or have last been granted, leave to remain as the partner of a PBS Migrant.
The Claimant had entered the UK as a student in 2003 and was granted successive extensions of stay until 2009. She was then granted leave to remain as a Tier 2 (General) Migrant and started work as a research associate at the University of Ulster. However, her post was brought to an end in 2011.
Soon after, the Claimant was offered an alternative research associate position at the university. However, the university made it a condition of her taking up the employment that she must have leave to remain in the UK on a visa which was not dependent upon a certificate of sponsorship, effectively ruling out the possibility of applying for an extension of stay as a Tier 2 migrant.
The Claimant’s husband, who she had recently married, was in the process of applying for leave to remain in the Tier 1 (Post-Study Work) category. The Claimant therefore believed she would be able to apply for leave to remain as the partner of a relevant PBS Migrant.
Having sought legal advice, the Claimant was told that she would be able to apply as the partner of a relevant Points Based System migrant, but the application would have to be made from outside the UK since paragraph 319C(h)(i) required her to have leave to remain as the partner of a PBS migrant. Left with apparently no other viable option, the Claimant returned to China to submit her application for entry clearance which was ultimately successful. However, by the time entry clearance had been granted, the university had withdrawn the offer of employment since it was unable to keep the offer of employment open indefinitely.
The Claimant argued that the requirement of paragraph 319C(h)(i) was incompatible with Article 8 of the ECHR.
The Secretary of State tried to resist the challenge by arguing that the Claimant had an alternative remedy available to her; she could and should have applied to the Secretary of State requesting that discretion was exercised in her favour to grant her leave to remain outside the Immigration Rules. In support of this argument, the Secretary of State relied upon paragraph 2 of the Immigration Rules which states that UKBA staff will carry out their duties in compliance with the provisions of the Human Rights Act 1998.
The Court was not persuaded by the Secretary of State’s argument. The Court noted that as from 9 July 2012 the Immigration Rules have been amended in order to reflect the Secretary of State’s interpretation of Article 8. Since paragraph 319C(h)(i) remains in force after these amendments, the Court considered that any application for leave to remain outside the Rules would have had no real prospect of success.
The Court therefore went on to consider whether the application of 319C(h)(i) was compatible with Article 8 of the ECHR.
In this regard, the Court noted that 319C(h)(i) effectively requires those wishing to apply for leave to remain as the partner of a relevant PBS migrant to leave the UK and apply for entry clearance in that capacity. However, this was found to be inconsistent with the House of Lords decision in Chikwamba v Secretary of State for the Home Department  UKHL 40. 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 be required to leave the UK to apply for entry clearance abroad.
In applying this principle the Court stated at paragraph 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  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  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’.
The Court refused to strike down 319C(h)(i) as being incompatible with Article 8, concluding that it remained a matter for the Secretary of State as to whether to amend the rule or remove it entirely. However, the Court noted that in its current form, the Secretary of State will face difficulties in enforcing this requirement in all but a small number of cases in which Article 8 is engaged.