Shah MD Jahangir Alam and Ataur Rahman v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Lord Justice Snowden,Lord Justice Peter Jackson |
| Judgment Date | 19 January 2023 |
| Neutral Citation | [2023] EWCA Civ 30 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: CA-2021-000112 and CA-2022-000372 |
[2023] EWCA Civ 30
Lord Justice Peter Jackson
Lady Justice Elisabeth Laing
and
Lord Justice Snowden
Case Nos: CA-2021-000112 and CA-2022-000372
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Upper Tribunal (Immigration and Asylum) Chamber
Upper Tribunal Judge Smith
HU/10354/2019 and PA/06610/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Zane Malik KC and Mazharul Mustafa (instructed by Imran Hossain (Kalam Solicitors)) for the Appellants
William Hansen (instructed by Tanya Robinson (The Treasury Solicitor)) for the Respondent
Hearing date: 22 November 2022
Approved Judgment
This judgment was handed down remotely at 11 am on 19 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The Appellants, Shah Md Jahangir Alam (‘A1’) and Ataur Rahman (‘A2’) appeal, with permission granted by Coulson LJ and Newey LJ respectively, from determinations of the Upper Tribunal (Immigration and Asylum) Chamber (‘the UT’) which dismissed their appeals from determinations of the First-tier Tribunal (‘the F-tT’). The F-tT had dismissed the appeals of each appellant from decisions of the Secretary of State. In A1's case, the UT held that there was no error of law in the F-tT's determination, and upheld it. The UT held in A2's case that the F-tT had erred in law, set aside the determination of the F-tT, re-made it, but nevertheless dismissed the appeal.
Both appellants entered the United Kingdom for avowedly temporary purposes (in 2007) and have lived in the United Kingdom unlawfully for many years after the expiry (in January 2008 and April 2009 respectively) of their leave. Each wishes, despite that, to stay in the United Kingdom, relying on a relationship with a British citizen wife or partner which started and/or continued when they were here unlawfully, to the knowledge of the wife/partner.
In these appeals A1 and A2 were represented by Mr Malik KC and Mr Mustafa. Mr Hansen represented the Secretary of State. I thank counsel for their written and oral submissions.
Paragraph references are to the determinations of the UT or the F-tT in each appeal, as the case may be, or, if I am considering an authority, to paragraph numbers of that authority.
The main issue on these appeals is whether the decision of the House of Lords in Chikwamba v Secretary of State for the Home Department [2008] UKHL 40; [2008] 1 WLR 1420 now has any, and if so, what, bearing on the issues which tribunals have to consider when appellants who have been in the United Kingdom unlawfully for many years resist their removal on article 8 grounds, when the fact-finder has decided that they can continue their family life abroad. A1 also has leave to argue that the F-tT erred in law in holding that there were no insurmountable obstacles to the continuation of his family life in Bangladesh.
For the reasons given in this judgment, I have reached five conclusions. Three are matters of general principle. The others concern the present appeals.
i. The decision in Chikwamba is only potentially relevant on an appeal when an application for leave to remain is refused on the narrow procedural ground that the applicant must leave the United Kingdom in order to make an application for entry clearance.
ii. Even in such a case, a full analysis of the article 8 claim is necessary. If there are other factors which tell against the article 8 claim, they must be given weight, and they may make it proportionate to require an applicant to leave the United Kingdom and to apply for entry clearance.
iii. A fortiori, if the application is not refused on that procedural ground, a full analysis of all the features of the article 8 claim is always necessary.
iv. Neither tribunal erred in law in its approach to Chikwamba. v. The F-tT did not err in law in the case of A1 by applying the test of ‘undue harshness’ rather than the test of ‘insurmountable obstacles’.
The relevant statutory provisions
Section 82(1) of the 2002 Act gives a person a right of appeal to the F-tT where the Secretary of State has refused a human rights or protection claim made by him. That right of appeal is subject to the exceptions and limitations specified in Part V of the 2002 Act (section 82(3)). Section 84 provides for the grounds of appeal, and section 85 for the matters which the tribunal must consider on such an appeal.
Part 5A of the 2002 Act was inserted by the Immigration Act 2014. It applies when a court or tribunal has to decide whether a decision under the Immigration Acts is a breach of article 8 and therefore would be unlawful under section 6 of the Human Rights Act 1998 (‘the HRA’) (section 117A(1)). In considering the public interest question, a court or tribunal ‘must (in particular) have regard — (a) in all cases to the considerations listed in section 117B, and (b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C’ (section 117A(2)). The ‘public interest question’ is whether an interference with article 8 is justified under article 8(2) (section 117A(3)).
Section 117B is headed ‘Public interest considerations applicable in all cases’. It lists five considerations.
i. The maintenance of effective immigration control is in the public interest.
ii. It is in the public interest that people who ask to enter, or to stay in, the United Kingdom, are able to speak English (for two stated reasons).
iii. It is in the public interest that such people are financially independent (for two similar reasons).
iv. ‘Little weight should be given’ to a private life, or to a relationship with a qualifying partner, which is established when a person is in the United Kingdom unlawfully.
v. ‘Little weight should be given’ to a private life or to a relationship formed with a qualifying partner when a person's immigration status is precarious.
‘Qualifying partner’ is defined in section 117D. It means a partner who is a British citizen or ‘who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 – see section 33(2A) of that Act)’. Section 33(2A) defines a person as being settled if he is ‘ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain’.
The Immigration Rules (HC 395 as amended)
At the time of these appeals, the relevant provisions of the Immigration Rules (HC 395 as amended) (‘the Rules’) dealt with article 8 in two broad ways. Appendix FM contained provisions which explained what conditions an applicant had to satisfy in order to get leave to remain under the Rules on the grounds of his family or private life. Paragraph EX.1 of Appendix FM provided an exception to the requirements of Appendix FM if the applicant had a relationship with a ‘qualifying partner’ and there were ‘insurmountable obstacles’ to continuing that relationship abroad. A ‘qualifying partner’ included a partner who was a British citizen. Those provisions were introduced with effect from July 2012.
The main authorities
Chikwamba
The appellant in Chikwamba was a national of Zimbabwe. She arrived in the United Kingdom in 2002 and claimed asylum. The Secretary of State refused her claim but decided not to remove her because conditions in Zimbabwe had got worse. The Secretary of State removed nobody to Zimbabwe for about two and a half years. In September 2002 she married another Zimbabwean who had been granted asylum in the United Kingdom. She had known him since she was a child. The Secretary of State refused her article 8 claim based on her marriage. In April 2004 they had a daughter. Her appeals against that decision were dismissed by the Immigration Appeal Tribunal, essentially on the ground that in accordance with the Secretary of State's relevant policy she should return to Zimbabwe and apply for entry clearance from there, and that a relatively short separation from her husband (who could not be required to leave the United Kingdom), did not breach article 8.
This Court dismissed the appellant's appeal. The House of Lords allowed it, for reasons given by Lord Brown, with whom the other members of the Appellate Committee agreed. Lord Scott added some reasons of his own, which were not adopted by any other member of the Committee. Lord Brown rejected the appellant's argument that the statutory predecessor of what is now a human rights appeal could never be dismissed on the basis that the appellant ought properly to leave the United Kingdom and to apply for entry clearance from abroad (paragraph 34).
He then considered the circumstances in which ‘it may be appropriate and proportionate’ to dispose of an appeal on that ground. That was ‘altogether more difficult’ (paragraph 35). In paragraph 37 he quoted the Secretary of State's relevant policy. This stated (in short) that it was likely to be proportionate to require a family to be separated for a short time while one spouse left the United Kingdom and applied for entry clearance. Lord Brown speculated that the purpose of the policy might be to deter people from coming to the United Kingdom without entry clearance by subjecting them to ‘the very substantial disruption of their lives involved in returning them abroad’ (paragraph 41).
He did not consider that ‘such an objective is in itself necessarily objectionable’. That course would be reasonable and proportionate in some cases. He described R (Ekinci) v Secretary of State for the Home Department [2003] EWCA Civ 765; [2004] Imm AR 15 (in which the appellant had ‘an appalling immigration history’ and would only have had to travel to Germany and to wait for about a month) as such a case. The...
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