Judgments - Chikwamba (FC) (Appellant) v Secretary of State for the Home Department Chikwamba (FC) (Appellant) v Secretary of State for the Home Department

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33.  The Court of Appeal (Ward, Neuberger and Gage LJJ) allowed the appellant’s appeal and remitted the case to the tribunal on the single ground that the tribunal “should not have carried out, or taken into account, their own assessment of her prospects of coming back to the UK on an indefinite basis pursuant to an application which she might make from Bangladesh for entry clearance under the immigration rules” (para 36 of the Court’s judgment given by Ward LJ). As the Court had earlier observed (at para 22):

“It would . . . seem somewhat paradoxical if the stronger an appellant’s perceived case for entry clearance under the immigration rules the more likely he or she is to be removed. Yet, . . . on the basis of the reasoning of the tribunal in this case, that would be the inevitable consequence.”

The Court of Appeal’s judgment referred to Mahmood, Ekinci and Chikwamba (the present case).

The wider argument

34.  I do not accept Mr Fordham’s submission that a section 65 appeal can never be dismissed on the basis that the appellant ought properly to leave the country to apply for entry clearance abroad. As Ms Carss-Fisk QC points out, that is not to deny the appellant his or her right to an in-country appeal but rather to dispose of it in a manner intended to promote immigration control.

The narrower ground

35.  The question, however, of just when it may be appropriate and proportionate to dispose of a section 65 appeal on this basis is to my mind altogether more difficult.

36.  As I observed in Ekinci, it would be bizarre if the weaker the appellant’s case the readier should the Secretary of State and the appellate authorities be to excuse him the requirement to apply for entry clearance abroad. Similarly, as the Court later observed in SB (Bangladesh) (see para 32 above), it would be “paradoxical” if the stronger the appellant’s case for entry clearance under the rules, the more appropriate would it be to remove him.

37.  The Secretary of State’s Asylum Policy Instruction on article 8, under the heading Consideration of Article 8 Family Life Claims,

includes this:

Is the interference proportionate to the permissible aim?

“In many cases, refusal or removal does not mean that the family is to be split up indefinitely. The . . . policy is that if there is a procedural requirement (under the immigration rules, extra-statutory policies or concessions) requiring a person to leave the UK and make an application for entry clearance from outside the UK, such a person should return home to make an entry clearance application from there. In such a case, any interference would only be considered temporary (and therefore more likely to be proportionate). A person who claims that he will not qualify for entry clearance under the rules is not in any better position than a person who does qualify under the rules—he is still expected to apply for entry clearance in the usual way, as the ECO will consider article 8 claims in addition to applications under the rules. See Ekinci...

In addition, it may be possible for the family to accompany the claimant home while he makes his entry clearance application, in which case there will be no interference at all.

For example, where a claimant is seeking to remain here on the basis of his marriage to a person settled in the UK, the policy is that they should return home to seek entry clearance to come here as a spouse under the relevant immigration rule. Where the spouse can accompany the claimant home while he makes his application, there will be no interference. Where this is not possible, the separation will only be temporary. The fact that the interference is only for a limited period of time is a factor that is likely to weigh heavily in the assessment of proportionality.”

38.  That, it would appear, is the policy applied in the appellant’s case. There is no dispute as to the genuineness of her marriage, nor as to the “insurmountable obstacle” faced by her husband in accompanying her back to Zimbabwe whilst she applied for entry clearance there. We were told that it would be hoped to complete the entry clearance procedure within three months. In short, the policy requires the appellant to be separated from her husband (and Bianca from her father) for a “limited period of time", and regards this “temporary” interference with their family life as “proportionate".

39.  Is the policy as a whole legitimate and proportionate? That is the first question to be asked. In answering it one must consider what its benefits really are. It is said to be necessary in the interests of the maintenance and enforcement of immigration control and indisputably that is a legitimate aim. But precisely what purpose is served and what in reality is achieved by this policy?

40.  As we have seen, there is reference in some of the cases to jumping the queue, not having “to wait in the entry clearance queue like everyone else.” It is not suggested, of course, that others are thereby put back in the queue and thus delayed in obtaining entry clearance. On the contrary, the very fact that those within the policy do not apply for entry clearance shortens rather than lengthens that queue. What is suggested, however, is that it is unfair to steal a march on those in the entry clearance queue by gaining entry to the UK by other means and then taking the opportunity to marry someone settled here and remain on that basis. But is it really to be said that others would feel a sense of unfairness unless those like the appellant are required to make their claims to remain from abroad?

41.  Is not the real rationale for the policy perhaps the rather different one of deterring people from coming to this country in the first place without having obtained entry clearance and to do so by subjecting those who do come to the very substantial disruption of their lives involved in returning them abroad?

42.  Now I would certainly not say that such an objective is in itself necessarily objectionable. Sometimes, I accept, it will be reasonable and proportionate to take that course. Indeed, Ekinci still seems to me just such a case. The appellant’s immigration history was appalling and he was being required to travel no further than to Germany and to wait for no longer than a month for a decision on his application. Other obviously relevant considerations will be whether, for example, the applicant has arrived in this country illegally (say, concealed in the back of a lorry) for good reason or ill. To advance a genuine asylum claim would, of course, be a good reason. To enrol as a student would not. Also relevant would be for how long the Secretary of State has delayed in dealing with the case—see in this regard EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41. 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 highly relevant. And there may be good reason to apply the policy if the ECO abroad is better placed than the immigration authorities here to investigate the claim, perhaps as to the genuineness of a marriage or a relationship claimed between family members, less good reason if the policy may ultimately result in a second section 65 appeal here with the appellant abroad and unable therefore to give live evidence.

43.  As matters presently stand the published policy appears to apply routinely to all article 8 family life cases irrespective of whether or not the rules apply:

“A person who claims that he will not qualify for entry clearance under the rules is not in any better position than a person who does qualify under the rules—he is still expected to apply for entry clearance…”

And for the reasons given in para 36 above it is, indeed, entirely understandable why someone outside the rules should not be better off. Oddly, however, when asked to explain why in those circumstances the appellant in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, seeking to remain here to enjoy family life with his emotionally dependent mother, was not first required to apply for entry clearance abroad, the Secretary of State (in a post-hearing note) said:

“Mr Betts did not . . . on the face of it fall within the scope of any relevant immigration rule designed to enable him to enjoy family life in the United Kingdom. In those circumstances it was not argued that Mr Betts should return to Sierra Leone to apply for entry clearance to join his family in the United Kingdom.”

I cannot reconcile that explanation with the stated policy. Nor has any explanation been offered as to why the policy was not applied also to the appellant Mr Kashmiri in Huang, who did not qualify under a rule requiring entry clearance but who was asserting a family life claim to remain here under article 8.

44.  I am far from suggesting that the Secretary of State should routinely apply this policy in all but exceptional cases. Rather it seems to me that 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. Besides the considerations already mentioned, it should be borne in mind that the 1999 Act introduced one-stop appeals. The article 8 policy instruction is not easily reconcilable with the new streamlined approach. Where a single appeal combines (as often it does) claims both for asylum and for leave to remain under article 3 or article 8, the appellate authorities would necessarily have to dispose substantively of the asylum and article 3 claims. Suppose that these fail. Should the article 8 claim then be dismissed so that it can be advanced abroad, with the prospect of a later, second section 65 appeal if the claim fails before the ECO (with the disadvantage of the appellant then being out of the country)? Better surely that in most cases the article 8 claim be decided once and for all at the initial stage. If it is well-founded, leave should be granted. If not, it should be refused.

45.  Your Lordships have been made aware too of recent changes to the immigration rules which appear to involve substantial mandatory periods of exclusion following refusal of entry clearance or leave to enter in respect of those who have entered illegally or overstayed. Inevitably these changes will have an impact on the future application of the policy in article 8 family cases.

46.  Let me now return to the facts of the present case. This appellant came to the UK to seek asylum, met an old friend from Zimbabwe, married him and had a child. He is now settled here as a refugee and cannot return. No one apparently doubts that, in the longer term, this family will have to be allowed to live together here. Is it really to be said that effective immigration control requires that the appellant and her child must first travel back (perhaps at the taxpayer’s expense) to Zimbabwe, a country to which the enforced return of failed asylum-seekers remained suspended for more than two years after the appellant’s marriage and where conditions are “harsh and unpalatable", and remain there for some months obtaining entry clearance, before finally she can return (at her own expense) to the UK to resume her family life which meantime will have been gravely disrupted? Surely one has only to ask the question to recognise the right answer.

Conclusion

 
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