Secretary of State for the Home Department and Another v Kizhar Hayat (Pakistan) and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Sir David Keene,Lord Justice Maurice Kay |
| Judgment Date | 31 July 2012 |
| Neutral Citation | [2012] EWCA Civ 1054 |
| Docket Number | Case Nos: C5/2011/2139/AITRF and C5/2012/0217/AITRF |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2012 |
[2012] EWCA Civ 1054
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)
Lord Menzies and Upper Tribunal Judge Peter Lane [2011] UKUT 00444 (IAC), IA/41216/2010
Deputy Immigration Judge Monson, IA/4126/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Vice President of the Court of Appeal Civil Division
Lord Justice Elias
and
Sir David Keene
Case Nos: C5/2011/2139/AITRF and C5/2012/0217/AITRF
Ms Lisa Busch (instructed by The Treasury Solicitor) for the First Appellant
Mr Zane Malik (instructed by Mayfair Solicitors) for the First Respondent
Mr Paul Turner (instructed by Raj Law Solicitors) for the Second Appellant
Mr Neil Sheldon (instructed by The Treasury Solicitor) for the Second Respondent
Hearing date : 28 June 2012
We have heard together two appeals. Each raises, amongst other matters, issues concerning the proper scope and application of the decision of the House of Lords in Chikwamba v Secretary of State for the Home Office [2008] UK HL 40 and so they are being dealt with in a single judgment. In Treebhowan (Mauritius) the appellant appeals against the decision of the Upper Tribunal which upheld the decision of the First Tier Tribunal that he had no right arising out of Article 8 of the ECHR to remain in the UK. In Hayat (Pakistan) the appellant is the Secretary of State who challenges the conclusion of the Upper Tribunal that the respondent's Article 8 claim should be sustained. Before considering the details of those cases, I will first discuss the Chikwamba case and its analysis by subsequent decisions of the Court of Appeal.
Chikwamba .
The circumstances of that case were as follows. The claimant was a Zimbabwean national who had arrived in the UK in April 2002 and thereafter unsuccessfully sought asylum. She was not removed at that time because the Secretary of State had decided to suspend the removal of failed asylum seekers to that country. In November 2002 she married another Zimbabwean national who had been granted indefinite leave to remain. She contended that her removal would infringe her Article 8 rights but her application failed both before the Secretary of State and on appeal before the adjudicator, notwithstanding that the adjudicator described conditions in Zimbabwe as being "harsh and unpalatable". The adjudicator wrongly held that the since the applicant's case under Article 3 failed, she could not establish an Article 8 case.
In April 2004 a daughter was born and in January 2005 the Immigration Appeal Tribunal ("IAT") dismissed her appeal, essentially on the grounds that she should return to Zimbabwe and seek entry clearance from there. It was a purely procedural point which did not otherwise engage with the substantive merits of her case. This was in accordance with the policy of the Secretary of State that where there is a procedural requirement that an application should be made from the applicant's home state, he should be returned home to make the application from there. The relevant asylum policy instruction observed that sometimes the family could travel with the applicant, in which case there was no interference with family life. Even where that was not possible, the view was expressed that any separation was likely to be temporary and so any interference was likely to be proportionate. In this case it was accepted that the applicant's husband could not return with her to Zimbabwe but the IAT noted that the separation would be only for a relatively short period.
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 was accepted to be genuine, it was wrong of the IAT to regard the application as a normal immigration application which she should have to make from Zimbabwe. He said this (para 45):
"In my view, Mr Husain's complaint under this head is ill-founded in two respects. First, as the authorities to which Mr Kovats has referred indicate, the fact that someone who has arrived in this country without the required entry clearance may be able to show that he would have been entitled to one does not, in the absence of exceptional circumstances, allow him to remain here without it. As Laws LJ observed in Mahmood, at paragraph 26:
"it is simply unfair that he [or she] should not have to wait in the queue like everyone else."
Or, as Simon Brown LJ in Ekinci, a case of a Turkish asylum seeker who had entered this country via Germany, put it at paragraph 17:
"17….. It would be a bizarre and unsatisfactory result if, the less able the applicant is to satisfy the full requirements for entry clearance, the more readily he should be excused the need to apply….. It is entirely understandable that the Secretary of State should require the appellant to return to Germany so as to discourage others from circumventing the entry clearance system….. ""
The House of Lords overturned this decision on appeal. The leading speech was given by Lord Brown of Eaton-under-Heywood. Lord Bingham, Lord Hope, Lord Scott and Baroness Hale all agreed with it. Lord Scott and Baroness Hale also gave short judgments of their own.
Lord Brown identified the relevant issue before the court in the following terms (para 9):
"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 appellant's submission was that the interference with family life occasioned by the requirement for the appellant to return to Zimbabwe, even if only for a short time, was in the circumstances disproportionate to any legitimate objective of immigration control.
Lord Brown discussed the two earlier Court of Appeal decisions which had in large part dictated the decision of the Court of Appeal in this case. He quoted more fully than had the Court of Appeal the observations of Laws LJ in Mahmood v Secretary of State for the Home Department [2001] 1 WLR 840 when Laws LJ held that it would typically be proportionate for the Secretary of State to insist that an applicant for entry clearance should make the application from his country of origin, as the rules require (para 23):
"Firm immigration control requires consistency of treatment between one aspiring immigrant and another. If the established rule is to the effect—as it is—that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited, to remain in the UK) must obtain an entry clearance in his country of origin, then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin."
The second decision mentioned by the Court of Appeal, which followed Mahmood,, was R (Ekinci) v Secretary of State for the Home Department [2004] Imm A R 15. The claimant had entered the UK illegally and claimed asylum, untruthfully saying that he had not previously sought asylum in any other EU country. In fact he had twice unsuccessfully made such a claim in Germany. Arrangements were made for him to be returned there in accordance with the Dublin Convention. Shortly thereafter he married a woman whom he had known in Turkey and who had come to the UK and acquired British citizenship. He had an appalling immigration history. Although there was no doubt that ultimately he would be allowed to remain with his wife in the UK, Simon Brown LJ, as he was, held that there was nothing remotely disproportionate in requiring him to return to Germany and to apply for entry clearance from there as the rules required. The time taken to process such applications was under a month.
As Lord Brown observed in Chikwamba, the effect of the policy in Ekinci required the applicant to be absent from the UK for only a limited period of time, since the evidence was that entry clearance would be achieved within three months. The question was whether such a temporary disruption of family life would be proportionate and in the particular circumstances the court held that it would.
Lord Brown accepted that the maintenance and enforcement of immigration control was a legitimate aim. However, he was unpersuaded by the argument, accepted by Laws LJ in Mahmood, that others required to apply from abroad would feel it unfair if persons like the appellant who also fell within the policy were permitted to have their cases determined without first returning home. Consistency of treatment was not such a virtue that it dictated an unthinking enforcement of the policy. Lord Brown...
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