Upper Tribunal gives guidance on the Chikwamba principle, by Ed Mynott
In the newly reported Upper Tribunal case of Hayat (nature of Chikwamba principle) Pakistan [2011] UKUT 00444 (IAC), a panel comprising Lord Menzies and Upper Tribunal Judge PR Lane has addressed the situation where in an Article 8 private and family life case, the only reason given by the Secretary of State for refusing the claim is that the applicant should return to the country of their nationality in order to make an application from overseas. This issue was famously tackled by the House of Lords in Chikwamba. The appellant in Chikwamba was a female Zimbabwean, who had unsuccessfully sought asylum in the United Kingdom and, whilst here, had married a Zimbabwean national, who had been granted refugee status. The couple had a daughter, aged 4 at the date of the House of Lords hearings. Their lordships held unanimously that it would be a violation of the appellant’s Article 8 rights to require her to leave the United Kingdom, with Lord Brown holding that:
44...only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad..
The facts of the Hayat case were very different. An Article 8 claim was made by the husband of a Pakistani national who had originally entered as a student and had then extended her Leave under Tier 4 until 2014. The couple intended to leave the UK when that Leave expired but, in the meantime: “We have become heavily dependent on each other, and find it unthinkable to live apart”( Hayat, 5)
The Article 8 appeal was dismissed but the Upper Tribunal found that:
21... the determination in the present appeal is legally flawed. In particular, the Immigration Judge was wrong to conclude that the Chikwamba principle could be rendered inapplicable to the facts of the case before her, on the basis that the appellant “is not seeking leave to settle in the United Kingdom as a spouse”.
The Tribunal sets out the relevant case law which has followed Chikwamba and, in accordance with those authorities, finds that the principle in Chikwamba does not ‘operate with unwavering force, regardless of the circumstances of the particular case’ (18). Findings of fact must be made. Nonetheless:
23 The significance of Chikwamba, however, is to make plain that, where the only matter weighing on the respondent’s side of the balance is the public policy of requiring a person to apply under the rules from abroad, that legitimate objective will usually be outweighed by factors resting on the appellant’s side of the balance.
24. Viewed correctly, the Chikwamba principle does not, accordingly, automatically trump anything on the State’s side, such as a poor immigration history. Conversely, the principle cannot be simply “switched off” on mechanistic grounds, such as because children are not involved, or that (as here) the appellant is not seeking to remain with a spouse who is settled in the United Kingdom.
25. Like the absence of children, that last factor may be one which diminishes the force of the principle; but whether it will do so depends upon an assessment of the facts. For example, if the position disclosed by the evidence had been that the appellant’s wife was due to finish her studies only a few weeks after the date of the hearing, and was intending to return to her country of origin, and the evidence was such that she did not need the appellant to be present with her while she finished her studies and prepared to leave, then the Chikwamba principle would have had nothing to add to the appellant’s case. The actual facts of the present case, however, were very different. As we have already seen, the appellant’s wife had the best part of a year to go before the end of her first tranche of the ACCA course. She has now been given leave to remain until 2014 in order to complete that course. There is no suggestion that her practical and emotional need for her husband to be with her has diminished in any respect.
The guidance given by the Tribunal in Hayat about the application of the Chikwamba principle makes clear that it applies whether or not there are children and whether or not there is an ultimate intention to settle. Of course, where there is a poor immigration history that can be relied on by the Secretary of State and would have to be addressed by the Appellant. But reminding decision-makers that an Article 8 claim cannot be defeated solely by reference to a policy of making applicants apply from overseas, should focus everyone’s attention on the actual circumstances of an individual’s family and private life and the quality of the evidence relied on by the parties. It also suggests the utility, in appropriate cases, of providing evidence to show that all the requirements of a given Immigration Rule are met (except the possession of entry clearance) as this will be a factor resting on the Appellant’s side of the balance.