R (on The Application of Chen) v Secretary of State for The Home Department (Appendix Fm - Chikwamba - Temporary Separation - Proportionality) (IJR)
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Gill |
| Judgment Date | 24 March 2015 |
| Neutral Citation | [2015] UKUT 189 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 24 March 2015 |
[2015] UKUT 189 (IAC)
UPPER TRIBUNAL
(Immigration and Asylum Chamber)
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
UPPER TRIBUNAL Judge Gill
For the Applicant: Mr I Palmer, of Counsel, instructed by Nag Law solicitors.
For the Respondent: Ms J Thelen, of Counsel, instructed by the Treasury Solicitor.
R (on the application of Chen) v Secretary of State for the Home Department) (Appendix FM — Chikwamba — temporary separation — proportionality) IJR
(i) Appendix FM does not include consideration of the question whether it would be disproportionate to expect an individual to return to his home country to make an entry clearance application to re-join family members in the U.K. There may be cases in which there are no insurmountable obstacles to family life being enjoyed outside the U.K. but where temporary separation to enable an individual to make an application for entry clearance may be disproportionate. In all cases, it will be for the individual to place before the Secretary of State evidence that such temporary separation will interfere disproportionately with protected rights. It will not be enough to rely solely upon the case-law concerning Chikwamba v SSHD [2008] UKHL 40 .
(ii) Lord Brown was not laying down a legal test when he suggested in Chikwamba that requiring a claimant to make an application for entry clearance would only “comparatively rarely” be proportionate in a case involving children (per Burnett J, as he then was, in R (Kotecha and Das v SSHD [2011] EWHC 2070 (Admin) ).
(iii) In an application for leave on the basis of an Article 8 claim, the Secretary of State is not obliged to consider whether an application for entry clearance (if one were to be made) will be successful. Accordingly, her silence on this issue does not mean that it is accepted that the requirements for entry clearance to be granted are satisfied.
(iv) In cases where the Immigration Rules (the “IRs”) do not fully address an Article 8 claim so that it is necessary (pursuant to R (Nagre) ) to consider the claim outside the IRs, a failure by the decision maker to consider Article 8 outside the IRs will only render the decision unlawful if the claimant in fact shows that there has been (or, in a permission application, arguably has been) a substantive breach of his or her rights under Article 8.
delivered on: 24 March 2015
The applicant is a 29-year-old national of the People's Republic of China (China). She has been granted permission to challenge a decision of the respondent of 25 October 2013 (hereafter the “first decision” or the “first decision letter”) refusing her application of 17 September 2013 for leave to remain on the basis of Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) outside the provisions of the Statement of Changes in the Immigration Rules HC 395 (as amended) (the “IRs”). The applicant's Article 8 claim was based on her marriage to a Raymond Hoi Wing Cheung, a British citizen born in the United Kingdom.
The first decision considered whether there would be insurmountable obstacles to the applicant and Mr Cheung enjoying family life in China but did not consider the possibility of the applicant applying for entry clearance in China.
Following the grant of permission, the respondent made a supplementary decision on 21 November 2014 (hereafter the “second decision” or the “second decision letter”). This decision elaborated upon the reasons why there were no insurmountable obstacles to family life being enjoyed in China. It then went on to consider the possibility of the applicant making an application for entry clearance in China in order to join Mr Cheung as his spouse.
At the hearing, I granted Mr Palmer's application for permission to amend the applicant's grounds in order to include a challenge to the second decision. I also granted permission to apply for judicial review of the second decision. As a consequence, the issue before me is whether the respondent (in the second decision) unlawfully used an “exceptionality test” or a threshold of exceptionality in applying Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 when she considered the possibility of the applicant applying for entry clearance in China.
The applicant entered the United Kingdom as a student on 30 March 2007. Her leave as a student expired on 30 November 2009 from which time she has remained in the United Kingdom without leave. In November 2008, she met Mr Cheung, who was born in the United Kingdom on 30 September 1984 of parents who were born in Hong Kong. Their relationship began on 18 July 2010. They began living together on 1 January 2012 and were married on 1 October 2012.
In the first decision letter, the respondent noted (in the context of the assessment of the applicant's case under para 276ADE of the IRs) that the applicant had parents and siblings who reside in China. This was based on the information provided by the applicant in her application for leave, at A138.
On 30 October 2014, the applicant was granted permission to apply for judicial review. In giving his reasons, the Upper Tribunal Judge stated that he had regard to the concession of Mr. Mandalia representing the Secretary of State in R (Iqbal) v Secretary of State for the Home Department [2014] EWHC 1822 (Admin) expressed as follows:
“there could therefore conceivably be cases where there were no insurmountable obstacles to the continuation of family life outside the UK, but the requirement to return to the applicant's country of origin to make an application for leave to remain outside the Immigration Rules would be a disproportionate interference with their Article 8 rights.”
In the light of this concession, the judge considered it arguable that “the [first decision letter was] unlawful because the respondent failed to give any consideration (or if she did this is not adequately reasoned) to whether or not the applicant should be permitted to remain outside the rules on the basis of the principles considered by the House of Lords in Chikwamba and subsequently by the Court of Appeal in [ Secretary of State for the Home Department v Treebhowan; Hayat v Secretary of State for the Home Department [2012] EWCA Civ 1054]”.
After permission had been granted, the respondent made the second decision on 21 November 2014, as stated above. The respondent concluded that the applicant had not demonstrated that there were insurmountable obstacles to family life being enjoyed in China and that she therefore did not satisfy paragraph EX.1(b) of Appendix FM. She also considered the applicant's case in the light of Chikwamba outside the IRs. The relevant paragraphs read:
“Insurmountable obstacles
Although it is also recognised that your client and her husband are in a genuine and subsisting relationship we are required to consider whether the exceptions [sic] paragraph EX.1(b) of Appendix FM can be applied to your client's case. This entails consideration of whether there are insurmountable obstacles to family life with that partner continuing outside the UK.
It is firstly noted that your client is not able to demonstrate insurmountable obstacles to family life being lived in China. However, for the sake of completeness in considering whether there are insurmountable obstacles the following points are noted:
•There is no information to show that your client and her husband cannot return to China lawfully and live there. A mere wish/preference to live in UK would not amount to an insurmountable obstacle.
•It is considered that your client and her husband were fully aware of her immigration status since your client was lawfully in the UK on a temporary basis as a student when they met and then remained here unlawfully since 30 November 2009. It is considered that both your client and her husband would have been aware that she may not be able to continue to live here.
•While there may be a cultural barrier for your client's husband to live in China and that some adjustment may be needed, this is not sufficient to amount to an insurmountable obstacle. Just as your client faced a change of culture to live in UK, it is not unreasonable to expect her husband to face a change of culture to live in China in order to continue their life together.
•It is submitted that your client's husband can speak Mandarin. Nonetheless, a lack of knowledge of a language spoken in the country in which the couple would be required to live would not usually amount to an insurmountable obstacle. It is reasonable to conclude that the couple must have been conversing in a commonly understood language whilst in the UK. Therefore, it is reasonable for that to continue outside the UK, whether or not the partner seeks to learn the language spoken in the country of proposed return.
•Even if your client and her husband have adapted to life in the UK, it would not be unreasonable to expect them to return to China and adapt to life there. Although they are receiving accommodation rent free here, because they live with her in-laws, it is considered that your client and her husband could find work in China. Although relocating to China together may cause a significant degree of hardship or inconvenience for your client and her husband, it does not amount to an insurmountable obstacle.
For these reasons it is asserted that there are no insurmountable obstacles to the family life between your client and her husband continuing in Pakistan [sic].
The Secretary of State has also considered your client's application in light of Chikwamba (Chikwamba v Secretary of State for the Home Office [2008] UKHL...
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