You may not now have to leave the UK

[Please be clear this briefing is for information only and must not be construed as legal advice, if you think the information may be of benefit to you, you must seek competent legal advice.]

Up to last Wednesday the relevant case law has been in favour of the Home Secretary, that it is not disproportionate to have a person leave the UK to apply for an entry clearance on ECHR grounds - i.e. Article 8 from abroad.

However this has been completely reversed in the House of Lords; the burden now shifts to the Home Office to show that in an Article 8 case, especially those where children are involved, it would reasonable to require an applicant to go abroad for entry clearance.

Chikwamba v Secretary of State for the Home Department
(Handed down June 26, 2008)

'An appeal based on the right to family life against a refusal of asylum and leave to enter should not be dismissed routinely because policy required the appellant to leave the country to apply for entry clearance abroad.' Time Law Reports

'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' @ 44 of the Lords judgement

The case concerned Sylvia Chikwamba, a Zimbabwean national, who had sought and been refused sanctuary, who married a recognized refugee and a daughter was born.

Lord Brown said, "This appellant came to the UK to seek asylum, met an old friend from Zimbabwe, married him and had a child. He is now settled here as a refugee and cannot return. No one apparently doubts that, in the longer term, this family will have to be allowed to live together here. Is it really to be said that effective immigration control requires that the appellant and her child must first travel back (perhaps at the taxpayer's expense) to Zimbabwe, a country to which the enforced return of failed asylum-seekers remained suspended for more than two years after the appellant's marriage and where conditions are "harsh and unpalatable", and remain there for some months obtaining entry clearance, before finally she can return (at her own expense) to the UK to resume her family life which meantime will have been gravely disrupted? Surely one has only to ask the question to recognise the right answer.

I would allow the appeal and hold that to remove the appellant to Zimbabwe would violate her and her family's article 8 rights."

Those who have had appeals dismissed on the basis that if would be proportionate to leave the UK and are still in the UK have two options.

First - Lodge an appeal against the decision of the tribunal or court if the time limit has not expired! (It may be possible to make an out of time appeal)

Second - Submit a fresh claim to the SSHD to have their (up-to-date) circumstances reconsidered in light of the House of Lord's decision.

Before exercising either option, seek good legal advice.

NCADC would like to thank TRP Solicitors for advice on compiling this briefing and the Note below.

Chikwamba v. SSHD

Note

Introduction
1. This case concerned an unsuccessful Zimbabwean asylum claimant who married, after her arrival in the United Kingdom and after the refusal of her claim, another Zimbabwean national recognised as a refugee by the Secretary of State. The couple had had a child. The Secretary of State argued, and the Court of Appeal accepted, that requiring the appellant to return to Zimbabwe to seek entry clearance would be compatible with Article 8.

2. The House of Lords disagreed 5-0, effectively reversing the previously controlling Court of Appeal authority of Mahmood [2001] 1 WLR 840 in which the court had concluded that only in an exceptional case would the entry clearance option not be an answer to an Article 8 plea. The House of Lords held that it would be 'comparatively rare' that entry clearance would provide the answer, and that 'in most cases' it would not. An adverse exceptionality rule has thus been replaced with a positive one.

The House of Lords judgment
3. Lord Scott expressed 'astonishment that the case should have come this far'. The policy which required that the appellant return to claim entry clearance, like '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 to it that it does not.' The decisions of the lower courts were 'clearly unreasonable and disproportionate.'

4. Lord Brown gave the leading speech. He rejected the appellant's wider argument that it could never be appropriate to dismiss an appeal brought on Article 8 grounds on the basis that entry clearance from abroad should be sought. But the question of when it would be appropriate to do so was 'altogether more difficult.' In the leading case of Mahmood [2001] 1 WLR 840, the Court of Appeal had considered that absent exceptional circumstances, an appellant had to return abroad to obtain entry clearance when required to do so under the rules. Lord Brown noted that Mahmood was not a case under the Human Rights Act 1998, nor did it concern statutory rights of appeal. Moreover, 'it appears to have been assumed that the immigration rules (including the requirement for entry clearance) themselves struck a justified and proportionate balance under Article 8 except in wholly exceptional cases (a view which persisted until the House's decision in Huang)'. Ekinci, in which the Mahmood rule applied, was 'on any view an exceptional case': the applicant there had 'an appalling immigration history'; he was being required to travel no further than Germany, and to wait no longer than a month.

5. Lord Brown concluded that 'Sometimes · it will be reasonable and proportionate' to dismiss an Article 8 claim on the basis that entry clearance should be sought from abroad, and Ekinci 'still seems to be just such a case.' But '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.'

6. Lord Brown considered that obviously relevant considerations included: (a) the strength of the claim under the rules - the stronger the claim, the less appropriate to remove to obtain entry clearance; (b) the individual's immigration history; (c) the likely timescale in which a decision would be taken; (d) any delay in consideration of the case; (e) the prospective length and degree of family disruption involved in applying for entry clearance - this was a highly relevant factor; (f) whether the ECO was better placed than the Immigration Officer to investigate the claim; (g) whether the entry clearance option would simply result in a second appeal on Article 8 grounds from abroad, with the appellant abroad and thus unable to give live evidence - this would militate against applying the entry clearance option: the 1999 Act introduced a one-stop policy, and it was better that 'in most cases the Article 8 claim be decided once and for all at the initial stage.'; (h) rule changes effected by HC 321 involving substantial mandatory periods of exclusion for overstaying etc.

Comment
7. Chikwamba reverses Mahmood by replacing an adverse exceptionality test with a positive one. Hitherto an exceptional case had to be shown by the appellant to overcome any entry clearance obstacle to an Article 8 claim. Now the Home Office will need to show an exceptional case if entry clearance is suggested as the answer.

8. The combination of factors (a), (c), (e) and (g) in §6 above underscore this conclusion. In 'most cases' entry clearance will not be the answer. Only 'comparatively rarely' will it be. Moreover, the stronger the claim under the rules, the less appropriate to remove for entry clearance (factor (a)). But equally, the longer and the more serious the family disruption caused by insisting on entry clearance, the less appropriate to remove (factors (c) and (e)). Further, where under the immigration rules the claim for entry clearance is likely to fail, necessitating recourse to Article 8 before the ECO and on appeal, again the less appropriate to remove (factor (e)): second appeals ran counter to the one-stop policy of the statute. Lord Brown laid emphasis on this consideration, alighting on it twice in this speech. It follows that the previous injunction against predicting the result of a likely entry clearance application (pressed by the Secretary of State, and accepted by the courts) can no longer stand.

9. It also follows that the entry clearance response should be reserved for exceptional cases, such as those with 'appalling' immigration histories where the period of family separation caused by insisting on the entry clearance requirement will be small. Otherwise the claim should be determined in the United Kingdom.

10. This conclusion is supported by considerations of common sense, humanity and the statutory policy of the 1999 and 2002 Acts. By insisting on the entry clearance option yet refusing to predict how it would be decided, the Secretary of State (with the support of the courts) could be said to be having her cake and eating it. More fundamentally, Mahmood was predicated on the implicit premise that the immigration rules struck the Article 8 balance. That was a false premise. Huang [2007] 2 AC 167 HL demonstrated that the rules both do not do so, and could not do so, because immigrants do not have the franchise. The contrary proposition was a legal fiction upon which the exceptionality tests, both as regards substance (Huang CA) and procedure (Mahmood), were built. It is troubling that the fiction continues to be deployed, even post-Huang HL; see: MB (Somalia) v. ECO [2008] EWCA Civ 102 at §59. Chikwamba (together with Huang and EB (Kosovo) [2008] UKHL 41) are landmark corrective decisions in this area of the law.

End of Bulletin:

Source for this Message:
TRP Solicitors
NCADC