Chikwamba v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AULD,LORD JUSTICE JONATHAN PARKER,LORD JUSTICE LLOYD |
| Judgment Date | 16 November 2005 |
| Neutral Citation | [2005] EWCA Civ 1779 |
| Docket Number | C5/2005/0885 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 November 2005 |
[2005] EWCA Civ 1779
IN THE SUPREME COURT OF JUDICAT
IN THE COURT OF APPEAL (CIVIL DIVISI
ON APPEAL FROM THE HIGH CO
IMMIGRATION APPEAL TRIBU
Royal Courts of Justice
Strand
London, WC2
Lord Justice Auld
Lord Justice Jonathan Parker
Lord Justice Lloyd
C5/2005/0885
MR RAZA HUS (instructed by TRP of Birmingham) appeared on behalf of the Appellant
MR STEVEN KOV (instructed by Treasury Solicitor) appeared on behalf of the Respondent
Introduction
This is an appeal by Sylvia Chikwamba against the determination of the Immigration Appeal Tribunal ("IAT") dismissing her human rights challenge brought on Article 8 grounds. The IAT concluded that, to require her to return to her country of origin, Zimbabwe, would be a proportionate interference with her, her husband's and their baby daughter's right to respect for family and private life guaranteed under Article 8 ECHR. Ms Chikwamba's husband is a recognised refugee and, like her, a Zimbabwean national. The couple married in the UK while she was awaiting the hearing of her appeal to an adjudicator from a refusal of asylum and permission to remain on humanitarian grounds. She has an extended family in Zimbabwe, including two children there by another man from whom she is estranged.
The first issue on the appeal is whether the IAT misdirected itself by following the guidance given in the case of M (Croatia) [2004] IAR 211, to the effect that it could only allow an appeal brought on Article 8 grounds where the disproportion constituted by removal from the country between private right and public interest was so great that no reasonable Secretary of State could reasonably reach the contrary view. That guidance was overruled by this Court in Huang v S [2005] 3 WLR 4891, in which it held that the question of proportionality was for the appellate authority, the adjudicator and/or the IAT, as the case may be, and that the test was whether the case was "truly exceptional on its facts".
That issue gives rise to a more focused question, namely whether the facts, including—in the event of failure on some or all of Ms Chikwamba's other arguments—the hazards of her involuntary or voluntary return to Zimbabwe to claim entry clearance to the UK, are such that the IAT, properly directing themselves, could possibly have found them truly exceptional so as to hold that her Article 8 rights prevailed.
The basic legislative framework is to be found, first, in Article 8 ECHR, which provides as follows:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, for the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others."
It is trite law that rights under the ECHR are to be secured in a manner that is practical and effective, rather than theoretical or illusory.
The other part of the legislative—or near legislative—framework to which I should refer is Rule 352A of the Immigration Rules, HC 395, which provides as follows:
"The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse of a refugee are that:
(i) the applicant is married to a person granted asylum in the United Kingdom; and
(ii) the marriage did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum; and
(iii) the applicant would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right; and
(iv) each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting; and
(v) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity."
There is thus (owing to para 352A(ii) ) no provision in the Immigration Rules for the admission of the spouse of a refugee where the marriage takes place after the refugee's flight from his or her home country.
The Facts
Mrs Chikwamba is, as I have said, a national of Zimbabwe. She arrived in the country in April 2002 at the age of 20, and sought asylum on the basis of her and her mother's involvement in the opposition Movement for Democratic Change ("the MDC") in Zimbabwe.
By a decision letter of 5th June 2002, the Secretary of State refused her claim for asylum, principally for want of her credibility, in particular as to her claimed membership of the MDC. He also rejected her claim to remain on humanitarian grounds based on her concern about the treatment she would receive in Zimbabwe if returned there as a failed asylum seeker. At para 14 of the letter, the Secretary of State stated:
"14. It is accepted that conditions in Zimbabwe have deteriorated in recent months and there were reports in December 2001 that some failed asylum seekers have faced difficulties on their return to Zimbabwe. While there was no evidence that returnees were being systematically detained for questioning or subjected to ill treatment, the Secretary of State was not satisfied, on the information then available, that unsuccessful asylum seekers could safely be returned to Zimbabwe. On 15th January 2002 the Secretary of State therefore decided to suspend removals of failed asylum seekers to the outcome of any appeal to the independent appellate authorities, be removed to Zimbabwe as soon as the Secretary of State is satisfied that it is safe to do so."
8. I should break into the narrative here to mention that the Secretary of State appears wrongly to have suggested in that passage that his decision to suspend enforced returns to Zimbabwe had been made because he considered it would not be safe to return them. Baroness Scotland of Ashtal explained in a parliamentary answer in the House of Lords on 4th November 2003:
"The suspension of removals of failed asylum seekers to Zimbabwe announced in January 2002 was in response to concerns about the serious deterioration in the situation in Zimbabwe in the build-up to the presidential election held in March that year. We did not, at that time, regard it as unsafe to return failed asylum seekers to Zimbabwe, but in view of the rapidly changing conditions we considered that it would be appropriate not to enforce returns.
The Government's position is, as it has been since January 2002, that each asylum (and human [rights] claim made by a Zimbabwean national will be considered on its individual merits in accordance with our ….. [convention obligations]. Each application is considered against the background of the latest available country information including that obtained from and through the Foreign and Commonwealth Office ….. "
It was some three months after the Secretary of State's refusal of asylum and relief on humanitarian grounds, and while the suspension on returns to Zimbabwe was still in force, that, on 26th September 2002, Ms Chikwamba married her present husband, a Zimbabwean national as I have said. She had known him since she was a child, and had formed a relationship with him after her arrival in the UK. On 13th June 2002 he had been granted asylum.
Following a further application for asylum or permission to remain on humanitarian grounds, the Secretary of State by a decision letter of 4th February 2003 again refused Ms Chikwamba's applications and added that he was not prepared to grant her exceptional leave to remain outside the Immigration Rules.
An adjudicator, on 14th May 2003, dismissed her appeal against both her applications. Whilst expressing the view in paragraph 11 of his determination that conditions in Zimbabwe were "harsh and unpalatable", he too found that her claim to asylum lacked credibility and he found that she was at no risk to breach of her rights under Article 3 if she were to be returned. With regard to her Article 8 claim, based on her marriage in this country, the adjudicator noted that her husband was aware of her status as an asylum seeker at the time of the marriage. In rejecting her claim under this head and in holding that return to Zimbabwe would be "wholly proportionate" to her claim for respect for her family life, he purportedly took as his guide the well known synthesis of Lord Philips MR (as he then was) in R (Mahmood) v Secretary of State [2001] 1 WLR 840, at para 55, of the approach of the Commission and the European Court of Human Rights which, for convenience because it will be referred again in this judgment, I set out:
"(1) A state has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations.
(2) Article 8 does not impose on a state any general obligation to respect the choice of residence of a married couple.
(3) Removal or exclusion of one member from a state where other members of the family are lawfully resident will not necessarily infringe article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family.
(4) Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in...
To continue reading
Request your trial
-
Chikwamba v Secretary of State for the Home Department
...TRP Solicitors) Respondents: Monica Carss-Frisk QC Steven Kovats (Instructed by Treasury Solicitors) SESSION 2007-08 on appeal from: [2005] EWCA Civ 1779 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE LORD BINGHAM OF CORNHILL My Lords, 1 I have had the advantage of reading in dra......
-
Secretary of State for the Home Department and Another v Kizhar Hayat (Pakistan) and Another
...but the IAT noted that the separation would be only for a relatively short period. 4 The Court of Appeal rejected her appeal: [2005] EWCA Civ. 1779. Auld LJ, with whose judgment Jonathan Parker and Lloyd LJJ agreed, dismissed a contention that given that Ms Chikwamba's marriage in the UK w......
-
Akinyemi v Secretary of State for the Home Department
...into the context of UK immigration law (see, for example, Chikwamba v Secretary of State for the Home Department [2008] UKHL 40; [2008] 1 WLR 1420)." The particular Chikwamba example does not bear on the present case, but I agree with Mr Drabble that the more general point made in that par......
-
SB (Bangladesh) v Secretary of State for the Home Department
...for the Home Department [2003] EWCA Civ 765, at paragraphs [16] and [17], and Chikwamba v Secretary of State for the Home Department [2005] EWCA Civ 1779, at paragraphs [42] to [46]. (See also Mahmood v Secretary of State for the Home Department [2001] 1 WLR 840 at paragraphs [25] and [26],......