The claimants, A and R, both Bangladeshi nationals, had entered the United Kingdom for avowedly temporary purposes and had lived in the United Kingdom unlawfully for many years after the expiry (in January 2008 and April 2009 respectively) of their leave. Each wished 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. The Secretary of State refused their applications for leave to remain on human rights grounds.
Part 5A of the 2002 Act made provision for where a court or tribunal had to determine whether a decision under the Immigration Acts was a breach of article 8 and therefore would be unlawful under section 6 of the Human Rights Act 1998 (“the HRA”, and by section 117A(2) provided that in considering the public interest question, of whether an interference with article 8 was justified under article 8(2) a court or tribunal should (in particular) have regard (a) in all cases to the considerations listed in section 117B, which included that little weight should be given to (iv) a private life, or to a relationship with a qualifying partner, which was established when a person was in the United Kingdom unlawfully, and (v) a private life or to a relationship formed with a qualifying partner when a person’s immigration status was precarious. The Immigration Rules (HC 395 as amended) at the relevant time, by 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.
The claimants’ appeals under section 82(1) of the Nationality, Immigration and Asylum Act 2002 to the First-tier Tribunal (“the F-tT”) were dismissed. In A’s case, The F-tT concluded that there were no insurmountable obstacles to A’s return to Bangladesh, that his private rights had to be balanced against the public interest, and those private rights were not such that the wider public interest should be set aside, that there was a public interest in reminding A and others in his position that there were article 8 compliant rules in relation to family life, and that if he wished to make his family life in the United Kingdom, he could do so, by making the same applications as others in his position and that there was nothing exceptional in his case which entitled him to be treated differently from those who complied with the law. In R’s case, the F-tT held that, taken on its own, R’s position would not “engage his human rights”. His private life was contingent upon having been in the country for a number of years with a precarious immigration status, there was no evidence that returning to Bangladesh would interfere with his wife’s family life and the Secretary of State’s decision was proportionate.
On appeals to the Upper Tribunal (Immigration and Asylum) Chamber (“the UT”) in A’s case it held that there was no error of law in the F-tT’s determination, and upheld it. In R’s case the UT held that the F-tT had erred in law, set aside the determination of the F-tT, re-made it, but nevertheless dismissed the appeal, finding that the public interest in immigration control was a weighty factor, R had been in the United Kingdom for a long period without leave and could not satisfy the Rules, that the maintenance of effective immigration control was in the public interest and required the removal of those who were in the United Kingdom without leave and who could not meet the requirements of the Rules, and that balancing the factors for and against, the public interest outweighed the interference with R’s private and family life.
The claimants appealed. The main issue on the appeals was 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 had any, and if so, what, effect on the issues which tribunals had to consider when claimants who had been in the United Kingdom unlawfully for many years resisted their removal on article 8 grounds, when the fact-finder had decided that they could continue their family life abroad.
On the appeals—
Held, appeals dismissed. (1) The decision in Chikwamba was only potentially relevant on an appeal when an application for leave to remain was refused on the narrow procedural ground that the applicant should leave the United Kingdom in order to make an application for entry clearance. Even in such a case, a full analysis of the article 8 claim was necessary. If there were other factors which told against the article 8 claim, they should be given weight, and they might make it proportionate to require an applicant to leave the United Kingdom and to apply for entry clearance. A fortiori, if the application was not refused on that procedural ground, a full analysis of all the features of the article 8 claim was always necessary. Neither tribunal had erred in its approach to the decision in Chikwamba. The claimants’ applications could not succeed under the Immigration Rules, to which courts should give great weight. The finding that there were no insurmountable obstacles to family life abroad was a further powerful factor militating against the article 8 claims, as was the finding that the relationships were formed when each claimant was in the United Kingdom unlawfully. The relevant tribunal in each case was obliged to take both those factors into account, entitled to decide that the public interest in immigration removal outweighed the claimants’ weak article 8 claims, and to hold that removal would therefore be proportionate. Moreover, the Secretary of State did not refuse leave in either case on the ground that the claimants should leave the United Kingdom and apply for entry clearance. Chikwamba was only relevant if the Secretary of State refused an application on the narrow procedural ground that the claimant should be required to apply for entry clearance from abroad. As that did not apply in the claimants’ cases, the decision in Chikwamba was irrelevant. Even if there was some flexibility in section 117B and section 117B(4)(b), there was, on the findings which the tribunals were entitled to make, no exceptional positive feature of the claim of either claimant which could enable it to succeed. There was, moreover, in each case a further negative factor, that family life could continue abroad. In Chikwamba, the Secretary of State met a very strong article 8 case by relying on an inappropriately inflexible policy. The decision in that case did not decide any wider point than that that defence failed. Three other matters should be borne in mind, namely that (i) The case law on article 8 in immigration cases had developed significantly since Chikwamba was decided; (ii) Chikwamba was decided before the enactment of Part 5A of the 2002 Act. Section 117B(4)(b) now required courts and tribunals to have “regard in particular” to the “consideration” that “little weight” should be given to a relationship which was formed with a qualifying partner when the applicant was in the United Kingdom unlawfully; (iii) When Chikwamba was decided there was no provision in the Rules which dealt with article 8 claims within, or outside, the Rules. By contrast, by the time of the claimants’ decisions, Appendix FM dealt with such claims, and Paragraph EX.1 of Appendix FM provided an exception to the requirements of Appendix FM in article 8 cases if the applicant had a relationship with a qualifying partner and there were “insurmountable obstacles” to family life abroad. Those three points meant that Chikwamba did not state any general rule of law which would bind a court or tribunal now in its approach to all cases in which an applicant who had no right to be in the United Kingdom applied to stay here on the basis of his article 8 rights (paras 6, 106–107, 110, 112–114,116, 117, 118).
Zane Malik KC and Mazharul Mustafa (instructed by Kalam Solicitors for the claimants.
William Hansen (instructed by the Treasury Solicitor)) for the Secretary of State.