Upper Tribunal (Immigration and asylum chamber), 2019-04-15, HU/10446/2017


Appeal Number: HU/10446/2017

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/10446/2017


Heard at Field House

Decision & Reasons Promulgated

On 4 December 2018 and 4 April 2019

On 15 April 2019











For the Appellant: Mr S Whitwell Home Office Presenting Officer (4 December 2018)

Ms L Kenny, Home Office Presenting Officer (4 April 2019)

For the Respondent: Mr J Siriwardena, counsel (4 December 2018)

Mr J Siri, counsel (4 April 2019)


1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal allowing the applicant’s appeal on human rights grounds outside the Rules against the decision of 13 September 2017 refusing him leave to remain on the grounds of his family and private life. In this decision I will refer to the parties as they were before the First-tier Tribunal, the applicant as the appellant and the Secretary of State as the respondent.


2. The appellant is a citizen of Nigeria born on 6 May 1968. He married his former wife in Nigeria in 2001 and their first child was born in 2002. He came to the UK on 7 February 2006 with entry clearance a spouse and his leave was extended on two further occasions until 11 March 2010. However, by that stage difficulties had arisen in the marriage and the appellant had returned to Nigeria for some seven months while he and his wife’s family attempted to resolve their problems. He sold his properties in Nigeria and made the funds available to his wife. In May 2009 he returned to the UK and initially there were no issues but subsequently arguments about money started again. In 2011 on return from work he found that the locks of the family home had been changed and he had been locked out. He lived on his own until 2013 when he met his current partner. They moved in together in 2014 and they intend to marry.

3. The appellant applied for further leave to remain in 2013 but his application was refused as he did not have any documentary evidence in a court order of his contact with his children. He then applied for a contact order, but his wife said that, unless he withdrew the application, she would not allow him to see the children and, following a hearing in the Family Court, the judge only allowed indirect access by post. The appellant had been granted discretionary leave to remain until 5 May 2013 but a subsequent application for leave was refused on 25 June 2013. That decision was later reconsidered and he was granted leave from 16 May 2016 until 31 August 2016. The application, the subject of this appeal, was made on 26 August 2016.

4. The respondent was not satisfied that the appellant could meet the requirements of the Rules or having taken into account under para GEN.3.3. of Appendix FM the best interests of his children, that there were any exceptional circumstances within para GEN.3.2. which would result in unjustifiably harsh consequences for him or any relevant child.

The Hearing Before the First-tier Tribunal.

5. The judge found that the appellant could not meet the requirements for leave to remain as a parent, as he did not have sole responsibility for his children; they did not live with him and he did not have direct access to them either as agreed with their mother or by court order. She went on to consider the application on private life grounds under para 276ADE of the Rules but found that the appellant would not face very significant obstacles to integrating into life in Nigeria as he could find employment, he had family members there as did his present partner, whose father and four brothers lived in Nigeria and she was in contact with them. The family home was not currently occupied and there was no reason why the appellant would be unable to reside there if he returned.

6. She went on to consider the provisions of para GEN.3.2., finding that there were no exceptional circumstances to justify a grant of leave within that provision. A court order was extant in which a Family Court judge had found that it was in the best interests of the appellant’s children that he did not have direct contact with them. It would not be an unjustifiably harsh consequence for him to be removed from the UK as he could continue with indirect contact. His current partner was a Nigerian national who had obtained UK citizenship in 2016 but she retained strong family links with Nigeria and could find employment there, albeit at a lower salary.

7. The judge then went on to consider the application outside the Rules. She said that there was a gap in the Rules, in that she must consider the likelihood of the appellant being granted leave to enter from outside the UK as a partner applying the guidance in R (on the application of Chen) v Secretary of State (Appendix FM – Chikwamba – temporary separation – proportionality) IJR [2015] UKUT 189. She found that family life was engaged, removing the appellant to Nigeria would be an interference of sufficient gravity to engage article 8 and the decision was made for a legitimate aim. She went on to consider whether the interference would be proportionate to that legitimate public aim. She found that the appellant had provided evidence that he would be granted leave to enter as a partner on an application from Nigeria now and then said at [63]:

“Weight must be given to the public interest in maintaining effective immigration controls. Weight can be given to the family life that the appellant has established in the UK, as the appellant was in the UK lawfully. The appellant would meet the requirements for leave to enter as a partner, now. For these reasons I find that the decision is disproportionate to the aim to maintain effective immigration controls and is in breach of the appellant’s right to family life.”

8. Accordingly, the appeal was allowed on human rights grounds.

The Grounds of Appeal and Submissions.

9. In the grounds of appeal, it is argued that the provisions of GEN.3.2. had been introduced into the Rules in August 2017 in response to the Supreme Court judgment in Agyarko v Secretary of State [2017] UKSC 11 and this amendment essentially made Appendix FM a complete code. It had brought within the Rules the test approved by the Supreme Court for deciding when an appellant who could not meet the substantive requirements of Appendix FM should, nevertheless, be allowed to remain because his removal would be a disproportionate breach of his article 8 rights.

10. The judge had erred, so the grounds argue, by undertaking a freewheeling article 8 proportionality exercise and, whilst the relevance of Chikwamba v Secretary of State [2008] UKHL 40 was somewhat hard to determine, given the developments in the Rules, legislation and case law, in the absence of a finding that a brief separation while entry clearance was sought was an unjustifiably harsh consequence, the judge was not entitled to find that there would be a disproportionate interference with the article 8 rights of the appellant and his partner. In any event, the judge was required to consider the application of the substantive Rules to the new relationship and this she had failed to do.

11. Permission to appeal was granted by the First-tier Tribunal on the basis that the conclusion on disproportionality pivoted on the finding at [63] that the appellant had established that he would be granted entry clearance as a partner were he to make an out of country application, but it was arguable that in the light of the previous finding of no unjustifiable harshness and the developments in the law since Chikwamba that the judge’s conclusion was in error.

12. In his submissions Mr Whitwell referred to the judgment of the Court of Appeal in R (on the application of Kaur) v Secretary of State [2018] EWCA Civ 1423. He submitted that Chikwamba had dealt with the situation within the Asylum Policy Instruction and was a case where there was a procedural requirement under the Rules requiring a person to make an application for entry clearance from outside the UK. He referred to [43] of Kaur and the fact that the facts in Chikwamba were striking. At [45] the Court had said that the Chikwamba principle would require a fact specific assessment in each case and would only apply in a very clear case and, even then, would not necessarily result in a grant of leave to remain.

13. He referred to [39] of Chen which held that if it was shown by an individual that an application for entry clearance from abroad would be granted and that there would be significant interference with family life by temporary removal the weight to be accorded to the formal requirement of entry clearance was reduced and that, in cases involving children where removal would interfere with the childâÂÂs enjoyment of family life with one or other of his or her parents whilst entry clearance was obtained, it would be easier to show that the balance on proportionality fell in favour...

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