Chikwamba v Secretary of State for the Home Department
|England & Wales
|LORD BROWN OF EATON-UNDER-HEYWOOD,LORD HOPE OF CRAIGHEAD,LORD SCOTT OF FOSCOTE,BARONESS HALE OF RICHMOND,LORD BINGHAM OF CORNHILL
|25 June 2008
| UKHL 40
|25 June 2008
|House of Lords
 UKHL 40
HOUSE OF LORDS
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Michael Fordham QC
(Instructed by TRP Solicitors)
Monica Carss-Frisk QC
(Instructed by Treasury Solicitors)
I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood. I am in full agreement with it, and would for the reasons which he gives allow the appeal and make the order which he proposes.
I have had the advantage of reading in draft the opinion of my noble and leaned friend Lord Brown of Eaton-under-Heywood. I agree with it, and for the reasons he gives I would allow the appeal and make the order that he proposes.
I have had the advantage of reading in draft the opinion on this appeal prepared by my noble and learned friend Lord Brown of Eaton-under-Heywood and am in complete agreement with the reasons he has given for allowing this appeal. My astonishment that the case should have had to come this far for the, as it seems to me, obvious conclusion that the appellant and her four year old child should be permitted to remain in this country with the appellant's husband and the child's father prompts me to add a few words of my own.
Not many would dispute, and I do not, that would-be immigrants who desire to remain permanently in this country should apply for permission to do so before coming here. It is the Government's policy that that should be so and that a failed asylum seeker should return, or be returned, to his or her country and make from there any applications for the right to reside in this country that he or she desires to make. But 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 that it does not.
The appellant, as Lord Brown has explained, came to this country as a refugee from Zimbabwe. Her asylum claim failed but on account of the conditions in Zimbabwe the removal of failed asylum seekers to Zimbabwe was temporarily suspended (see para 11 of Lord Brown's opinion). While she was in this country in that state of limbo she married Mr Magaya, a Zimbabwe national who had been granted asylum and, accordingly, the right to remain. The marriage was in September 2002. No one has suggested that this was a marriage of convenience or other than a genuine consequence of the attachment that had grown between these two young people. In April 2004 a daughter was born to the appellant and her husband. In November 2004 the Secretary of State lifted the suspension of forced removals to Zimbabwe and the question then arose whether the appellant, presumably with her little girl, should be required to return to Zimbabwe in order to apply from Zimbabwe for permission to come to this country in order to resume her life with her husband. The Immigration Appeal Tribunal and the Court of Appeal held that that is what should happen.
The appellant, in her appeal, relies on article 8 of the Convention and, for my part, I regard the decisions of the lower courts as clearly unreasonable and disproportionate. It is, or ought to be, accepted that the appellant's husband cannot be expected to return to Zimbabwe, that the appellant cannot be expected to leave her child behind if she is returned to Zimbabwe and that if the appellant were to be returned to Zimbabwe she would have every prospect of succeeding in an application made there for permission to re-enter and remain in this country with her husband. So what on earth is the point of sending her back? Why cannot her application simply be made here? The only answer given on behalf of the Secretary of State is that government policy requires that she return and make her application from Zimbabwe. This is elevating policy to dogma. Kafka would have enjoyed it. I would allow this appeal.
For the reasons given in the opinion of my noble and learned friend, Lord Brown of Eaton-under-Heywood, with which I agree, I too would allow this appeal and make the order which he proposes.
In the case of , the House has decided that the effect on other family members with a right to respect for their family life with the appellant must also be taken into account in an appeal to the AIT on human rights grounds. Even if it would not be disproportionate to expect a husband to endure a few months' separation from his wife, it must be disproportionate to expect a four year old girl, who was born and has lived all her life here, either to be separated from her mother for some months or to travel with her mother to endure the "harsh and unpalatable" conditions in Zimbabwe simply in order to enforce the entry clearance procedures
In determining an appeal under section 65 of the Immigration and Asylum Act 1999 (the 1999 Act) (now sections 82 and 84 of the Nationality, Immigration and Asylum Act 2002 (2002 Act)) against the Secretary of State's refusal of leave to remain on the ground that to remove the appellant would interfere disproportionately with his article 8 right to respect for his family life, when, if ever, is it appropriate to dismiss the appeal on the basis that the appellant should be required to leave the country and seek leave to enter from an entry clearance officer abroad?
The basic facts
The appellant is a Zimbabwean national now aged 26 who arrived in the UK with a younger brother and sister on 22 April 2002 and sought asylum on the basis of her and her mother's involvement in the opposition Movement for Democratic Change (MDC). She had left behind in Zimbabwe two children by a man from whom she was estranged who were living with relatives.
On 5 June 2002 the Secretary of State refused her asylum claim, principally on grounds of credibility, and on 8 June 2002 refused her leave to enter. The Secretary of State added, however, that, because conditions in Zimbabwe had deteriorated, she had decided to suspend removals of failed asylum-seekers to Zimbabwe. (In the event, that suspension was not lifted for some two and a half years until 16 November 2004.)
On 26 September 2002 the appellant married Mr Magaya, a Zimbabwean national whom she had known in Zimbabwe since childhood and who had been granted asylum here on 13 June 2002.
On 4 February 2003 the Secretary of State refused the appellant's claim that to remove her to Zimbabwe would breach her article 8 right to respect for her family life. Just over a year later, on 14 April 2004, a daughter, Bianca, was born to the appellant and her husband.
The appeal proceedings below
The adjudicator dismissed the appellant's appeal on 14 May 2003 on the ground that, although conditions in Zimbabwe were "harsh and unpalatable", since the facts were insufficient to engage article 3, the appellant could not establish a case under article 8. The Court of Appeal was later to describe this, accurately, as "a plain error of law".
Although initially the IAT refused the appellant leave to appeal, later, following McCombe J's grant of permission to apply for judicial review of that refusal on 26 January 2004, and a consent order made by Gibbs J on the substantive judicial review hearing on 16 June 2004, leave to appeal was given on 22 November 2004 (just after the Secretary of State had lifted the suspension and forced returns to Zimbabwe) and on 4 January 2005 the appeal was heard.
Although it was common ground that the adjudicator had erred in his approach to article 8, the IAT dismissed the appeal essentially on the basis that the appellant could and should return to Zimbabwe to apply there for entry clearance to return to the UK. They believed that her separation from her husband (who they accepted faced "an insurmountable obstacle to his own return to Zimbabwe") would be for "a relatively short period".
On 16 November 2005 the Court of Appeal (Auld LJ, Jonathan Parker and Lloyd LJJ) dismissed the appellant's appeal, Auld LJ giving the single reasoned judgment.
The appellant had argued that because family life could not be constituted outside the UK in Zimbabwe and because there was doubt about whether she could comply with the substantive requirements of the immigration rules, her removal might cause the break-up of the marriage and Bianca's separation from one of her parents. Rule 352A, providing for leave to enter as the spouse of a refugee, required that the marriage had taken place before the refugee took flight from his home country (which here it had not). Rule 281, providing general leave to enter as a spouse, required the applicant to show that the family would be accommodated and maintained without recourse to public funds, a requirement which the appellant might not be able to meet (the difficulties facing refugees being implicitly recognised in Rule 352A which contains no such requirement).
Auld LJ summarised the Secretary of State's argument (in paras 43 and 44) as follows:
"[The appellant] confused two separate things: first, the substantive matter of permanent unity or break-up of a family and, secondly, the procedural means, such as entry clearance, for protecting the permanence of family unity. Procedural rules, the procedural aspect, is recognised in the immigration rules and instructions outside the immigration rules …...
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