Alam and Rahman v Secretary of State for the Home Department
Jurisdiction | England & Wales |
Judge | Peter Jackson,Elisabeth Laing,Snowden LJJ |
Judgment Date | 18 January 2023 |
Neutral Citation | [2021] EWCA Civ 30 |
Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 30
Peter Jackson, Elisabeth Laing and Snowden LJJ
COURT OF APPEAL
Human rights — Article 8 of the ECHR — family life — proportionality — no insurmountable obstacles to family life continuing abroad — Chikwamba v Secretary of State for the Home Department[2008] UKHL 40 considered — full analysis of Article 8 claim required — immigration — leave to remain — spouses — Bangladeshi nationals — marriage to British citizens whilst overstayers
The Claimants, A and R, were citizens of Bangladesh. They entered the United Kingdom in 2007 and had overstayed their temporary permission to remain by many years. Both Claimants went on to marry British citizens. They then applied for leave to remain based on their family life with their respective wives which had started and/or continued whilst they were in the United Kingdom unlawfully to the knowledge of each wife. The Secretary of State for the Home Department refused the applications.
The First-tier Tribunal (‘FtT’) dismissed the Claimants' appeals, finding no insurmountable obstacles to the continuation of their family lives in Bangladesh. Moreover, the Claimants' private life rights were outweighed by the wider public interest in immigration control. On further appeal, the Upper Tribunal (‘UT’) held that there had been no error of law in the FtT's decision in respect of A. Although the FtT had made an error of law in R's case, in re-making the decision the UT arrived at the same conclusion that the public interest outweighed the interference with his private and family life.
Before the Court of Appeal, the Claimants submitted that section 117B of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) was flexible and should be applied in accordance with the principle in Chikwamba v Secretary of State for the Home Department[2008] UKHL 40, namely that an appeal should be allowed if there was no criminality or other seriously aggravating feature and if it was certain that the claimant would succeed in an application for entry clearance. They argued that the UT had erred in concluding that Chikwamba was not applicable where a couple could be expected to continue their family life abroad and that it should be taken into account where an applicant was otherwise certain to be granted leave to enter as there would be no public interest in their removal. In addition, A submitted that the FtT had erred in law in holding that there were no insurmountable obstacles to the continuation of his family life in Bangladesh.
Held, dismissing the appeals:
(1) The decision in Chikwamba was only potentially relevant on an appeal when an application for leave to remain was refused on the narrow procedural ground that the applicant should leave the United Kingdom in order to make an application for entry clearance. Even in such a case, a full analysis of the Article 8 ECHR claim was necessary. If there were other factors that told against the Article 8 claim, they should be given weight and might make it proportionate to require an applicant to leave the United Kingdom and apply for entry clearance. If the application was not refused on that procedural ground, a full analysis of all the features of the Article 8 claim was always necessary: Secretary of State for the Home Department v Hayat (Pakistan)[2012] EWCA Civ 1054 approved. Neither tribunal had erred in law in its approach to Chikwamba (paras 6 and 110).
(2) Part 5A of the 2002 Act applied when a court or tribunal had to decide whether a decision under the Immigration Acts was a breach of Article 8 ECHR. In considering the public interest question as to whether an interference with Article 8 was justified under Article 8(2), a court or tribunal should have regard in all cases to the considerations listed in section 117B of the 2002 Act, which included that little weight should be given to a private or family life which was established when a person was in the United Kingdom unlawfully or when a person's immigration status was precarious. At the time of the instant appeals, the relevant provisions of the Immigration Rules HC 395 (as amended) dealt with Article 8 in two broad ways. Appendix FM contained provisions which explained the conditions an applicant had to satisfy in order to obtain leave to remain under the Immigration Rules on the grounds of his family or private life. Paragraph EX.l of Appendix FM provided an exception to the requirements of Appendix FM if the applicant had a relationship with a ‘qualifying partner’ and there were ‘insurmountable obstacles’ to continuing that relationship abroad. A ‘qualifying partner’ included a partner who was a British citizen (paras 8, 9 and 11).
(3) The case law on Article 8 in immigration cases had developed significantly since Chikwamba was decided, which was before the enactment of Part 5A of the 2002 Act and at a time when there was no provision in the Immigration Rules dealing with Article 8 claims within, or outside, the Immigration Rules. By contrast, at the time of the decisions in the instant appeals, Appendix FM dealt with such claims. Chikwamba did not state any general rule of law which would bind a court or tribunal in its approach to all cases in which an applicant who had no right to be in the United Kingdom applied to stay on the basis of his Article 8 rights. It simply decided that, on the facts of that claimant's case, it was disproportionate for the Secretary of State to insist on her policy that the claimant should leave the United Kingdom and apply for entry clearance from abroad. The Claimants had relied on VW (Uganda) v Secretary of State for the Home Department[2009] EWCA Civ 5 to support the contention that requiring a person to leave the United Kingdom and apply for entry clearance from abroad had become the exception rather than the rule. The reasoning in VW (Uganda) did not bind the instant court. First, the Immigration Rules and the statutory background were different then. Secondly, the Supreme Court had now recognised that the insurmountable obstacles test was the right test, so the premise of Sedley LJ's analysis was wrong. Thirdly, having applied the wrong test, Sedley LJ had left hanging the question as to whether, applying his test, it was reasonable for the family to continue family life in Uganda (paras 100, 106, 107 and 111).
(4) The Claimants' applications could not succeed under the Immigration Rules, which had to be given great weight. The finding that there were no insurmountable obstacles to family life abroad was a further powerful factor militating against the Article 8 claims, as was the finding that the relationships were formed when each Claimant was in the United Kingdom unlawfully. The relevant tribunal in each case was obliged to take both those factors into account and was entitled to decide that the public interest in immigration removal outweighed the Claimants' weak Article 8 claims, and to hold that removal would therefore be proportionate. Neither the FtT in A's case nor the UT in R's case had erred in law in its approach to Chikwamba. Moreover, the Secretary of State had not refused leave in either case on the ground that the Claimant should leave the United Kingdom and apply for entry clearance. Accordingly, Chikwamba was irrelevant to the instant appeals. Even if there was some flexibility in section 117B and 117B(4)(b), there was, on the findings which the tribunals were entitled to make, no exceptional positive feature of the claim of either Claimant which could enable it to succeed. There was, moreover, in each case, a further negative factor, namely that family life could continue abroad (paras 112 – 114).
(5) In relation to A, the FtT was entitled to express its concerns about the circumstances in which the relationship had been formed with his wife, namely, against the advice of her social worker, at a time when she was in care and vulnerable, when A had not initially told her that he was in the United Kingdom unlawfully, and in the light of the significant age difference between them. There was in any event nothing in the reasoning of the FtT which showed that those justified concerns were a significant element in its decision. The FtT's approach to the application of the insurmountable obstacles test was unimpeachable. Its failure to refer to Lai v Secretary of State for the Home Department[2019] EWCA Civ 1925 was not an error of law (para 115).
Chikwamba v Secretary of State for the Home Department [2008] UKHL 40; [2008] 1 WLR 1420; [2009] 1 All ER 363; [2008] Imm AR 700; [2008] INLR 502
Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799; [2017] 3 All ER 20; [2017] Imm AR 484; [2017] INLR 109
Lal v Secretary of State for the Home Department [2019] EWCA Civ 1925; [2020] 1 WLR 858
Parveen v Secretary of State for the Home Department [2018] EWCA Civ 932
R v Secretary of State for the Home Department ex parte Razgar [2004] UKHL 27; [2004] 2 AC 368; [2004] 3 WLR 58; [2004] 3 All ER 821; [2004] Imm AR 381; [2004] INLR 349
R (on the application of Agyarko) v Secretary of State for the Home Department; R (on the application of lkuga) v Secretary of State for the Home Department[2017] UKSC 11; [2017] 1 WLR 823; [2017] 4 All ER 575; [2017] 3 CMLR 3; [2017] Imm AR 764; [2017] INLR 548
R (on the application of Ekinci) v Secretary of State for the Home Department [2003] EWCA Civ 765; [2004] Imm AR 15
R (on the application of Thakral) v Secretary of State for the Home Department [2015] UKUT 96 (IAC)
Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536; [2019] 1 All ER 1007; [2019] Imm AR452; [2019] INLR233
Secretary of State for the Home Department and Treebhowan (Mauritius) v Hayat (Pakistan) and Secretary of State for the Home Department [2012] EWCA Civ 1054; [2013] Imm AR 15; [2013] INLR 17
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