The Relevance of Chikwamba to Human Rights Appeals
In Alam & Anor v Secretary of State for the Home Department  EWCA Civ 30, the Court of Appeal had to consider the relevance of the decision of the House of Lords in Chikwamba v Secretary of State for the Home Department  UKHL 40 to human rights appeals at present.
The Upper Tribunal had dismissed the appeals of the two appellants, as had the First-tier Tribunal before it. The appeals were against the Secretary of State’s decisions to refuse the appellants’ applications for leave to remain in the UK on the basis of their family life with their British citizen partners. The appellants had entered the UK on a temporary basis and had remained unlawfully after the expiry of their leave.
The appellants had appealed to the Court of Appeal on the basis that the Upper Tribunal had misapplied the principle in Chikwamba and had erred as to its relation to the public interest considerations in section117A-B of the Nationality, Immigration and Asylum Act 2002.
The Court of Appeal considered the relevant authorities. It was noted that, in Chikwamba the Secretary of State had refused the appellant’s claim on the ground of a policy applicable at the time, which stated that it was likely proportionate to require a family to be separated for a short time while one spouse left the United Kingdom and applied for entry clearance. It was further noted that, whilst the House of Lords allowed the appeal, the argument that an appeal could never be dismissed on the basis that the appellant ought to leave the UK and apply for entry clearance from abroad was rejected.
The Court of Appeal further considered the case of VW (Uganda) v Secretary of State for the Home Department  EWCA Civ 5, in which that Court had allowed outright one of the appeals against the decision of the Asylum and Immigration Tribunal on the basis that, despite factors that weighed against the appellant’s article 8 claim, the impact of the refusal on the family and a British citizen child, in circumstances where it was likely that the appellant would eventually secure entry clearance, was disproportionate; the decision in Chikwamba was held to tip the scales in the appellant’s direction.
Hayat v Secretary of State for the Home Department  EWCA Civ 1054 was also considered. In that judgment, it was held, applying Chikwamba, that the refusal of a claim on the procedural ground that policy required the applicant to apply for entry clearance from abroad was capable of engaging article 8, but did not always do so. If it did, it would be disproportionate to enforce such a policy unless it was sensible to do so, which is a fact-sensitive exercise. An article 8 claim should be considered on its merits in any event, with no weight to be given in the proportionality exercise to the fact that the applicant has not applied for entry clearance from abroad, in the absence of a sensible reason to require them to do so.
Further authorities and their relevance were considered, including the recent decision of the Upper Tribunal, Younas (section 117B(6)(b); Chikwamba; Zambrano)  UKUT 00129 (IAC). In that, it was held that an applicant who relied on Chikwamba had to address the relevant considerations listed in section 117B, as Chikwamba was decided before the commencement of Part 5A of the Nationality, Immigration and Asylum Act 2002.
In her judgment, LJ Laing, with whom LJ Snowden and LJ Peter Jackson agreed, held as follows:
In Chikwamba, the Secretary of State met a very strong article 8 case by relying on an inappropriately inflexible policy. The decision does not in my view decide any wider point than that that defence failed. There are three other matters that should be borne in mind when it is cited nowadays.
- The case law on article 8 in immigration cases has developed significantly since Chikwamba was decided.
- It was decided before the enactment of Part 5A of the 2002 Act. Section 117B(4)(b) now requires courts and tribunals to have ‘regard in particular’ to the ‘consideration’ that ‘little weight’ should be given to a relationship which is formed with a qualifying partner when the applicant is in the United Kingdom unlawfully.
iii. When Chikwamba was decided there was no provision in the Rules which dealt with article 8 claims within, or outside, the Rules. By contrast, by the time of the decisions which are the subject of these appeals, Appendix FM dealt with such claims. Paragraph EX.1 of Appendix FM provided an exception to the requirements of Appendix FM in article 8 cases if the applicant had a relationship with a qualifying partner and there were ‘insurmountable obstacles’ to family life abroad.
In view of the above, it was held that Chikwamba did not state a general rule of law, but simply decided that, in the appellant’s circumstances, it was disproportionate for the Secretary of State to insist on her policy that an applicant should leave the UK and apply for entry clearance from Zimbabwe. The rejection of the argument that an appeal could never be dismissed on this basis in principle, the finding that the appellant’s family would have to be allowed to live together here eventually, the appellant’s husband’s being a refugee from Zimbabwe and thus unable to live there and the skepticism of the value to be placed on the public interest in immigration control in that case were all viewed as relevant.
Laing LJ considered that only VW (Uganda) and Hayat had been considered by reference to Chikwamba, whereas the other decisions simply made comments about it, without it being part of their ratio. The approach in Hayat was considered correct, as well as that of the UT in Younas. It was considered that VW (Uganda) did not bind the Court.
Following that reasoning, it was held that:
i. The decision in Chikwamba is only potentially relevant on an appeal when an application for leave to remain is refused on the narrow procedural ground that the applicant must leave the United Kingdom in order to make an application for entry clearance.
ii. Even in such a case, a full analysis of the article 8 claim is necessary. If there are other factors which tell against the article 8 claim, they must be given weight, and they may make it proportionate to require an applicant to leave the United Kingdom and to apply for entry clearance.
iii. A fortiori, if the application is not refused on that procedural ground, a full analysis of all the features of the article 8 claim is always necessary.
It was, thus, found that neither tribunal had erred in their approach to Chikwamba, and, after rejecting the first appellant’s second ground of appeal, dismissed both appeals.
The Court of Appeal’s view on the narrow scope of Chikwamba appears consistent with the House of Lords’ reasoning. There was no dispute as to the genuineness of the marriage, nor as to the “insurmountable obstacle” faced by the appellant’s husband in accompanying her back to Zimbabwe whilst she applied for entry clearance there. The only issue was whether her being required to apply for entry clearance from outside the UK, despite these circumstances, was a proportionate interference with her and her family members’ Article 8 rights.
Given the above, the finding in VW (Uganda) that the likelihood of return via entry clearance should be treated as a factor that can render removal a disproportionate interference does not seem to follow from Chikwamba. In Chikwamba it was held that the requirement to apply for entry clearance alone can rarely render an interference, that would otherwise be disproportionate, into a proportionate one.
However, the criticism of VW (Uganda) in Alam is not without its flaws, particularly in relation to the insurmountable obstacles test. In Agyarko, the Supreme Court considered that insurmountable obstacles to family life continuing in the country of proposed return was one of the many various factors set out in Jeunesse, which are relevant to the proportionality exercise under article 8. The Court of Appeal’s focus in VW (Uganda) on “what is reasonable”, seems consistent with the judgment in Agyarko: what is reasonable is simply another way of framing the proportionality exercise between an individual’s article 8 rights and the public interest, in which insurmountable obstacles is a relevant factor, not a test.
The extent to which the enactment of Part 5A of the 2002 Act and the amendments to the Immigration Rules following the decision in Chikwamba are relevant to any departure from the position in Chikwamba is less clear: Part 5A was enacted by Parliament to ensure that the courts and tribunals’ approach to Article 8 considerations is consistent with Strasbourg jurisprudence, taking into account the UK’s margin of appreciation. The same applies to any amendments to Appendix FM, in relation to decision-making by the Secretary of State’s officials. Aside from the fact that the claim in Chikwamba was particularly strong and the procedural issue of the Secretary of State’s policy was particularly narrow, it is unclear how these changes can warrant a change of approach to the proportionality exercise under Article 8.
All in all, the Court of Appeal’s message is that a full proportionality assessment under Article 8 is always required.
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