Artesham Butt v Secretary of State for the Home Department

Hearing date: 29 January 2025

Approved Judgment

This judgment was handed down remotely at 12 o'clock on 28 February 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

The Appellant (‘A’) applied to the Secretary of State for leave to remain as a spouse on 4 May 2021 (‘application 2’). The Secretary of State refused application 2 in decision 2, dated 30 December 2021. A appealed to the First-tier Tribunal (Immigration and Asylum Chamber) (‘the F-tT’). The F-tT allowed his appeal in determination 2, which was promulgated on 24 June 2022. The Secretary of State appealed to the Upper Tribunal (Immigration and Asylum Chamber) (‘the UT’), with the leave of the UT. In determination 3, promulgated on 17 October 2023, the UT held the F-tT had erred in law in determination 2. The UT therefore allowed the appeal of the Secretary of State.

A now appeals against determination 3 with the permission of Arnold LJ. A relies on three grounds of appeal.

1. The UT erred in its application of Alam v Secretary of State for the Home Department [2023] EWCA Civ 30; [2023] 4 WLR 17 (‘ Alam’) to A's case. A relies, among other things, on the (correct) point that this court did not, in Alam, refer to the reasoning of the UT in R (on the application of Chen) v Secretary of State for the Home Department (Appendix FM – Chikwamba – temporary separation – proportionality) [2015] UKUT 00189 (IAC); [2015] Imm AR 867. I will refer to that decision of the UT as ‘ Chen’.

2. The UT misunderstood the F-tT's reasoning about EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] 1 AC 1159 (‘ EB (Kosovo)’).

3. The UT erred in law in ‘confusing the test for insurmountable obstacles (under the Immigration Rules) with the test of proportionality (with reference to Chikwamba) concerning temporary separation outside the Immigration Rules’.

The Secretary of State relies on a Respondent's Notice (‘RN’), giving two reasons for upholding determination 3 in addition to those relied on by the UT.

1. In its assessment of proportionality, the F-tT ignored a material consideration which section 117B(4)(b) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) required it to take into account.

2. The relevant provisions of the Immigration Rules (HC 395 as amended) (‘the Rules’) required the F-tT, as part of that assessment, to ask whether A could show that there were exceptional circumstances making it unjustifiably harsh to refuse his application. The F-tT ignored that requirement.

For the reasons given in this judgment I would dismiss A's appeal. The UT was right to hold that the F-tT erred in law in allowing A's appeal. In short, the F-tT's approach, relying on the decisions in EB (Kosovo) and R (Chikwamba) v Secretary of State for the Home Department [2008] UKHL 40; [2008] 1 WLR 1420 (‘ Chikwamba’) ignored several material developments in the law about article 8 of the European Convention on Human Rights (article 8') in immigration cases (as explained by this court in Alam). In fairness to the F-tT, it was not helped by the parties' express agreement that this was ‘a Chikwamba case’ (paragraph 44 of determination 2).

I do not accept A's assertion, in paragraph 16 of his skeleton argument, that there is still confusion, after the decision in Alam, about the status of Chikwamba. Alam decides that the only case in which the reasoning in Chikwamba is potentially relevant now is if the Secretary of State expressly refuses leave to remain solely on the narrow procedural ground that the applicant must leave the United Kingdom to apply for entry clearance; and even then, it is necessary for the F-tT to make an overall assessment of the strength of the applicant's article 8 case. This case is not such a case. The reasoning in Alam leaves no scope for A's argument that Chikwamba applies if the effect of a refusal of leave to remain amounts, ‘in substance’ to a requirement to leave the United Kingdom and to apply for entry clearance from abroad. That argument coincides with one the grounds of appeal which this court dismissed in Alam (see paragraph 17, below).

On this appeal A was represented by Mr Mohammed, who drafted A's grounds of appeal and skeleton argument. The Secretary of State was represented by Mr Howells, who drafted the Secretary of State's skeleton argument. I thank both counsel for their help. I am particularly grateful to Mr Howells, as I explain in paragraphs 13 and 18, below.

The decisions in Chikwamba and in Alam

The reasoning in Chikwamba and in Alam is central to the grounds of appeal. It is therefore convenient to begin this judgment with a short summary of those two decisions. Neither party to the appeal suggested that the summary of Chikwamba in Alam is inaccurate, so in order to avoid making this judgment longer than necessary, I will rely on that summary, and on the reasoning in Alam.

Chikwamba

Chikwamba is summarised in paragraphs 12–17 of Alam. The appellant was a national of Zimbabwe. She came to the United Kingdom in 2002 and claimed asylum. The Secretary of State refused that claim but did not remove her immediately because of the conditions in Zimbabwe. She then married another Zimbabwean who had been granted asylum in the United Kingdom, and whom she had known since childhood. The Secretary of State refused her article 8 claim based on her marriage. The couple had a daughter in 2004. Her statutory appeals against that decision were dismissed, essentially because the Secretary of State had a policy of requiring people in her situation to return to their home country and to apply for entry clearance from there, on the assumption that a relatively short period of separation from her family was not a breach of article 8. This court also dismissed her appeal.

The House of Lords allowed her appeal. The leading speech, with which the other members of the Appellate Committee agreed, was given by Lord Brown. He dismissed her argument that a statutory appeal could never be dismissed on the ground that the appellant should be expected to leave the United Kingdom and apply for entry clearance from abroad (paragraph 34). He then considered when it could be appropriate to dismiss her appeal on that ground, which was ‘altogether more difficult’ (paragraph 35). He quoted the relevant policy in paragraph 37. He guessed that the purpose of the policy might be to deter people from entering the United Kingdom without the appropriate entry clearance (paragraph 41). He did not think that that purpose was ‘necessarily objectionable’. It would be reasonable and proportionate in some cases, for example, if the appellant had ‘an appalling immigration history’ and would only have to wait a short time to get entry clearance. The reason why the appellant had come to the United Kingdom would also be relevant, as would delay by the Secretary of State, and the likely length and extent of any temporary disruption to family life in the meantime.

He observed that the policy seemed to apply to all article 8 cases, whether or not the Rules also applied. He considered that it was only ‘comparatively rarely, certainly in family cases involving children’, that an article 8 case should be dismissed on the ground that it would be proportionate and more appropriate to require an appellant to apply for entry clearance from abroad (paragraph 44). He concluded that there was no doubt that, in the long run, this family would have to be allowed to live together in the United Kingdom. There was only one right answer, in his view, to the rhetorical question he asked at the end of his speech. He clearly did not consider that effective immigration control required the appellant and her daughter to return to Zimbabwe, particularly when returns to Zimbabwe had been suspended, and conditions there were ‘harsh and unpalatable’, for only a few months, before returning to the United Kingdom and to her family life, which would have been ‘gravely disrupted’ in the meantime (paragraph 46).

Alam

In Alam this court considered two appeals by Bangladeshi nationals. They had both arrived in the United Kingdom with leave to enter for temporary purposes and had then overstayed for significant periods. They then applied for leave to remain, relying on a relationship with a British citizen wife or partner which had started or continued when the appellant in question was in the United Kingdom unlawfully. In both cases, the appellants' statutory appeals failed. The relevant tribunal had found, in particular, that the appellants could continue their family life abroad. They then appealed to this court. The main issue in the appeals was whether the decision of the House of Lords in Chikwamba had any effect in such cases.

It is therefore obvious that there are at least three important differences between the facts of the cases which this court considered in Alam and the facts in Chikwamba. First, in Alam, the tribunals had found as a fact that family life could continue abroad, whereas it could not in Chikwamba, because the appellant's husband had been granted asylum in the United Kingdom. Second, the family life in Chikwamba was enjoyed by a husband and wife and their young child. There were no children in...