Secretary of State for the Home Department and Another v Kizhar Hayat (Pakistan) and Another
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge P R Lane |
| Judgment Date | 08 November 2011 |
| Neutral Citation | [2011] UKUT 444 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 08 November 2011 |
[2011] UKUT 444 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Lord Menzies
UPPER TRIBUNAL JUDGE P R Lane
For the Appellant: Mr E Chaudhry, Solicitor, instructed by A M Law Associates
For the Respondent: Mr R Hopkin, Senior Home Office Presenting Officer
Hayat (nature of Chikwamba principle) Pakistan
The significance of Chikwamba v SSHD [2008] UKHL 40 is to make it plain that, in appeals where the only matter weighing on the respondent's side of an Article 8 proportionality balance is the public policy of requiring an application to be made under the immigration rules from abroad, that legitimate objective will usually be outweighed by factors resting on the appellant's side of the balance. The Chikwamba principle is not confined to cases where children are involved or where the person with whom the appellant is seeking to remain has settled status in the United Kingdom.
The appellant, a citizen of Pakistan born on 12 November 1984, entered the United Kingdom on 23 January 2007, with entry clearance as a student. Within the currency of his leave the appellant applied for a variation, as a Tier 1 Post-Study Worker until 3 October 2010. Before the end of that period of leave, he applied for a variation, as the partner of a female citizen of Pakistan, who had arrived in the United Kingdom in October 2009 with leave as a student. The appellant and his partner had been living together in a relationship since November 2009. The parties applied for a certificate of approval for marriage and were, in fact, married on 14 October 2010.
The respondent refused the appellant's application because she considered that the appellant failed to show that he satisfied the requirements of paragraph 319C of the Immigration Rules for leave to remain as the Partner of a Relevant Points Based System migrant. By reason of paragraph 319C(h), an applicant applying for such leave to remain “must have, or have last been granted, leave:
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(i) as the Partner of a Relevant Points Based System migrant,
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(ii) as the spouse or civil partner, unmarried or same-sex partner of a person with leave under another category of these Rules who has since been granted, or is, at the same time, being granted leave to remain as a Relevant Point Based System migrant …”
As has already been indicated, the appellant's last grant of leave was under Tier 1 and it is, in fact, common ground between the parties that the appellant cannot satisfy the Immigration Rules. However, at the hearing before the First-tier Tribunal, which followed the appellant's appeal against the respondent's decision to refuse him leave, his representative advanced the ground that it would be a disproportionate interference with the appellant's Article 8 rights to require him to leave the United Kingdom, pursuant to the refusal to vary leave to remain.
Immigration Judge Herlihy heard oral evidence from the appellant and his wife, which was not subject to challenge by the respondent (since no Presenting Officer was present) and was not the subject of any adverse credibility finding by the Immigration Judge. As well as confirming the history to which we have just made reference, the appellant's wife told the Immigration Judge that their respective families had not consented to the marriage and that the wife no longer spoke with her family. The appellant's family were said to be “no longer living”; but, once the wife had finished her course, “they will return to Pakistan as her husband has his own home there” (paragraph 6.6 of the determination). It is necessary to note at this point that the appellant's wife is studying for a ACCA qualification and that, although one of the courses relating to this was due to end in November 2011, she has subsequently been granted a variation of leave to remain until 31 May 2014, in order to complete the ACCA qualification.
The appellant and his wife also told the Immigration Judge that he had “done everything” for his wife “such as picking her up from college, doing the shopping and giving her moral support and that they depend upon one another very much and it would be very hard for her to be alone in the United Kingdom. [The wife] says that she has no other relatives in the United Kingdom” (paragraph 6.5). The appellant's written statement described him as “supporting my wife psychologically and [I] have been encouraging her to study. We have become heavily dependent on each other, and find it unthinkable to live apart” (paragraph 9).
Applying the five-stage test set out by the House of Lords in Razgar [2004] UKHL 27, the Immigration Judge concluded that it would not be a disproportionate interference with the rights of the appellant and his wife to require the appellant to leave the United Kingdom. The Immigration Judge noted that in MM (Tier 1 PSW; Art 8; “private life”) Zimbabwe [2009] UKAIT 00037, it was held that a student in the United Kingdom on a temporary basis had no expectation of a right to remain in order to further social ties and relationships, where the criteria of the Points-Based System were not met and that the character of an individual's private life was by its very nature of the type which could be formed elsewhere, albeit through different social ties. Although the Court of Appeal in OA (Nigeria) [2008] EWCA Civ 82 had held that the Asylum and Immigration Tribunal had been entitled to conclude that a student's Article 8 rights would be violated if she were removed from the United Kingdom in the middle of an academic year, the Tribunal in MM concluded that the prospects for bringing “a right to study case within Article 8 are bleak”. In this regard, the Tribunal in MM noted the judgment of Laws LJ in LL (China) [2009] EWCA Civ 617, that “the appellant has on the facts effectively no Article 8 case unless her desire to complete the ACCA course of itself provides her with one, but I do not see that Article 8 can fulfil that function, at least on the facts of this case”.
The Immigration Judge observed that in CDS (PBS: “available”: Article 8) Brazil [2010] UKUT 000305 (IAC), the Upper Tribunal held that Article 8 did not give an Immigration Judge a freestanding liberty to depart from the Immigration Rules and it was unlikely that a person would be able to show an Article 8 right by coming to the United Kingdom for temporary purposes. On the other hand, a person already admitted to follow a course may have built up a private life that deserved respect and the public interest in removal before the end of the course might be reduced where there were ample financial resources available.
At paragraph 9.7, the Immigration Judge in the present case rightly reminded herself of the fact that, in the light of the judgments in Beoku-Betts [2008] UKHL 39, she had to consider not only the Article 8 rights of the appellant but also those of others with whom his family life was enjoyed.
At paragraph 9.8, the Immigration Judge concluded that the appellant's family life with his wife “can continue in Pakistan although I acknowledge that the appellant's wife will not wish to return whilst her course is ongoing”. The Immigration Judge, however, also considered an alternative scenario:-
“I do not find that there are any obstacles preventing the appellant's wife remaining in the United Kingdom to conclude her studies whilst the appellant returns to Pakistan for a short period of time until she returns to join him or whilst the appellant seeks entry clearance to return to the United Kingdom to join her. I have also taken into account Chikwamba v SSHD [2008] UKHL 40 and appreciate that it is not necessarily unlawful to require an appellant who relied on a human rights ground to return to their country of origin to make an application for entry clearance. The rationale behind the Home Office policy of routinely requiring appellants to apply from abroad was to deter others from entering without entry clearance. This could be a legitimate objective and in certain cases could be the right course of action, but only when relevant considerations in the particular case made it so. In an Article 8 family case the prospective length and degree of family disruption involved in going abroad for an entry clearance certificate will always be a highly relevant factor in the assessment of proportionality”.
The Immigration Judge's conclusion on the proportionality issue was as follows:-
“9.9 I find that the appellant and his wife have only been in the United Kingdom on a temporary basis and they could have had no expectation of a right to remain in order to further their family life, ties and relationships. Unlike the applicant in Chikwamba the appellant is not seeking leave to settle in the United Kingdom as a spouse and I find that the decision is proportionate in that it serves a public end. I find that the decision of the respondent is not sufficiently serious to amount to a breach of rights of the appellant under Article 8”.
Accordingly, the Immigration Judge dismissed the appeal, both under the Immigration Rules and on human rights grounds. Permission to appeal against the determination of the Immigration Judge was sought on two grounds. The second of those related to an alleged failure on the part of the Immigration Judge to consider a policy, described as the “recently published ‘casework instructions’ dated 7 August 2008”, in which the Secretary of State gave guidance to caseworkers on the assessment of proportionality in the light of Chikwamba. Since this document's existence, let alone relevance, was not mentioned in the grounds of appeal to the First-tier Tribunal or in the submissions and written materials...
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