Curtailment and Entry Clearance: Interfaith Couple Wins on Chikwamba in Court of Appeal

Tikka v The Secretary of State for the Home Department [2018] EWCA Civ 642 (28 March 2018)

Qaisar Tikka entered as with student leave until September 2011. Subsequently, he met his British wife Josita Simta Rajoria and they married on 22 August 2011. Tikka accidentally killed someone in the UK while driving while uninsured. He was still successful in this appeal because it was pointless to require him to return home to reapply for entry clearance. Interestingly, since his wife is a Hindu and he is a Muslim, they would not be able to live together in Pakistan as an unmarried couple without committing a criminal offence in the process. In September 2011, he applied for leave as a spouse but while that application was pending, he was involved in a road traffic accident on 21 December 2011. Someone stepped out in front of his vehicle and was killed while he was delivering food from a takeaway restaurant. His driving was not to blame. He had vehicle insurance. Since the insurance policy did not cover use of the vehicle for work purposes, the result that he was driving uninsured when the accident occurred. Therefore, he was convicted of the offence of causing the death of another person by driving a motor vehicle while uninsured, carrying a maximum sentence of two years’ imprisonment, and sentenced to 180 hours’ unpaid work pursuant to a community order. The Home Office refused his spouse visa application because the required English language certificate was not provided.

However, since the certificate was ultimately produced, the First Tier Tribunal allowed the appeal in February 2014. Leave to remain was granted for two years on 11 September 2014. But Tikka’s leave was simultaneously curtailed under paragraph 322(5), paragraph 322(5A) and paragraph 323(i) of the rules because he had caused “serious harm” and removal directions were put into place. However, in the final analysis the Court of Appeal remained unimpressed with the authorities’ stance on the public interest in removing Tikka. The court was also suspicious of the fact that proceedings in the Upper Tribunal focused on the prospects of temporary separation between husband and wife and the consequences of a permanent separation were left unaddressed. In relation to the curtailment, the case was dismissed on the rules. But FTTJ Law had allowed the appeal on article 8 of the ECHR in a freewheeling kind of way because (i) the couple’s marriage would be “destroyed” by Tikka’s removal, and (ii) the spouses’ separation would be disproportionate “because of the inability of the Appellant’s wife to travel to Pakistan” and the operation of the law in that country which would dually prevent the couple from marrying and also make it a crime for them to cohabit outside of wedlock.

Of course, all this led the Home Office to mount an appeal to the UT on mainly on the basis that FTTJ Law was mistaken in his view because he misdirected himself when considering the question of leave outside the rules on article 8 grounds by failing to take into account the public interest considerations listed in section 117B of the Nationality, Immigration and Asylum Act 2002, as mandated by section 117A(2)(a) thereof.

The Upper Tribunal

Deputy Upper Tribunal Judge Birrell set aside FTTJ Law’s decision and found that he had materially erred in law. Overall, however, both judges arrived at the identical conclusion on article 8 outside the rules because it would be unreasonable to expect Tikka’s Hindu wife to relocate with him to Pakistan because of the problems posed by their respective religions. DUTJ Birrell examined the mitigating circumstances in Tikka’s case. His offence did not reflect on the manner of his driving. He did not receive a custodial sentence. On the other hand, his separation from his wife resulting from his removal, whilst his entry clearance as her spouse was pending, would not be a disproportionate interference with their article 8 rights.

Insofar as entry clearance was concerned, the UT proceeded on the basis that the test would be different from that in paragraph 322(5A). DUTJ Birrell identified paragraph S-EC.1.5 of Appendix FM as the relevant provision which merely provides that exclusion of an applicant is conducive to the public good because his conduct and character make it undesirable to grant them entry clearance. He declined to speculate about how that different test would be applied by the decision-maker in Tikka’s case and observed that in Sabir (Appendix FM – EX.1 not free standing) [2014] UKUT 63 (IAC) the UT opined that “the likelihood or otherwise of being able to meet the requirements of the rules for entry clearance is not a relevant consideration” in these circumstances.

Tikka appealed on twofold grounds. Abandoning the first ground that DUTJ Birrell erred on the rules, he proceeded on the basis that the UT erred on article 8 outside the rules. Tikka argued that his separation from his wife would in fact be permanent because the suitability requirements imposed by paragraphs S-EC.2.1 and 2.5 for his re-entry were materially identical to those upon which his leave was curtailed.

The Court of Appeal

Kitchin, Hickinbottom and Coulson LJJ allowed the appeal. They set aside the decision of DUTJ Birrell and remitted the matter for redetermination by a differently constituted UT. Tikka argued that DUTJ Birrell determination was flawed because he strayed into unlawful territory by addressing the question of the proportionality of returning to Pakistan to reapply for entry clearance. He submitted that authorities such as Chikwamba [2008] UKHL 40 and Hayat [2012] EWCA Civ 1054 (see here) meant that the public interest in returning an individual to their home country to make an application for admission is tied to a person’s unlawful presence in the UK.

Accordingly, determining their right to remain in the UK without returning them to their home state, would result in their cases queue-jumping and would undermine the entire immigration system which requires an individual to obtain entry clearance before arriving in the UK. Tikka was not in the UK unlawfully and so the point was irrelevant. Hickinbottom LJ was of the view that:

14. … There is force in that argument; but, as with all issues concerning the right to private and family life, the issue as to whether removal in circumstances in which the relevant individual has the ability to apply to re-enter would be in breach of article 8 is necessarily fact-specific.

On the public interest question, the court found unpersuasive the point made by the Home Office that any future application for entry clearance would not necessarily fail notwithstanding that the relevant suitability criteria for the consideration of any application for leave to re-enter made from Pakistan would be identical to those for curtailment. Hickinbottom LJ roundly rejected the government’s stance for the reason that Tikka always had leave to remain and married in 2011. Although the Home Office reserved the right to tackle sham marriages, the present marriage had been confirmed as genuine by both tiers of the tribunal and the Court of Appeal was careful not to disturb those findings and treated the couple as man and wife.

Hickinbottom LJ also acknowledged, as the tribunals had done, that it was unreasonable to expect that Tikka’s wife Josita Simta Rajoria should live in Pakistan. No set of criteria under the rules entitled him to remain in the UK and any challenge to the curtailment decision depends upon the executive’s residual discretion as governed by her obligations under section 6(1) of the Human Rights Act 1998 and article 8. Therefore, the same criteria would apply to any application for re-entry into the UK in the event of Tikka’s removal. The court therefore held:

20. Given that it would be unreasonable to expect Ms Rajoria to move to Pakistan, the removal of the Appellant to that country would interfere with their respective article 8 rights, even if the Appellant were able to apply from Pakistan for leave to re-enter and irrespective of the merits of any such application. That interference will be disproportionate unless the Secretary of State can justify it by reference to the legitimate aims of the public interest.

The executive’s case was that the curtailment provisions of paragraph 322(5A) generally pursued the public interest aims to prevent crime and disorder by migrants and the maintenance of effective and consistent immigration control in relation to foreign offenders in the UK, the approach it was said sought to contribute to the economic well-being of the country. Significantly, prevention of crime and disorder was irrelevant in the present case because Tikka only had a one off conviction and there no evidence existed to support the belief that he would reoffend.

Overall, Hickinbottom LJ followed the course take by Sullivan LJ in MA (Pakistan) [2009] EWCA Civ 953 – as adopted by Elias LJ in Hayat – and found that the executive failed articulate the public interest in requiring the appellant to leave the UK and apply for re-entry from Pakistan, and she had no sensible reason for requiring him to take that course. As pointed out by Lord Brown in Chikwamba there were sound reasons for the underlying article 8 claim to be determined in the UK, if necessary at an appeal hearing before the tribunal at which Tikka’s could give live evidence.

In relation to the permanence of separation, the court held that the main issue in the UT had been whether Tikka’s removal would result in a temporary, rather than a permanent, separation of the spouses. DUTJ Birrell’s determination that the spouses’ separation would be temporary depended on any application to re-enter being considered on the basis of different criteria from the decision to curtail his leave. The difference in criteria formed a core part of the UT’s analysis. It was mere speculation by the Home Office to assert that it was not a foregone conclusion that any application to re-enter would be unsuccessful in any event.

On the basis of the evidence, and on the assumption that the entry clearance officer would make a decision consistent with the decision to curtail Tikka’s leave, any application for re-entry would be refused. His only claim relied on the executive’s discretion as governed by article 8, albeit guided by the requirements of section 117A(2) and (3) of the 2002 Act, and she has already exercised her discretion against him. Hickinbottom LJ found every reason to suppose that, on the same material and applying the same criteria, an entry clearance officer, an alter ego of the Home Secretary, would reach the same view again. His Lordship considered the case of Sabir and said that the fact that that refusal would be the subject of an appeal raising exactly the same issues as the present one underscored the futility of removing Tikka without determining the article 8 issue once and for all.

Following SB (Bangladesh) [2007] EWCA Civ 28, it was held in Sabir that whether or not an applicant would satisfy the requirements for entry clearance was not a matter which a tribunal tasked with determining whether an unlawfully-present applicant should be removed and made to apply for re-entry should take into account. The present case was uncontroversial because of Tikka’s inability to satisfy the rules and reliance upon the executive exercising her discretion in his favour, the exercise was materially identical whether on the basis of curtailment or application to re-enter.

Comment

On any view, DUTJ Birrell was living in a fool’s paradise to hold the suitability test applied for an entry clearance application was less onerous than that applied by decision-maker in curtailing Tikka’s leave. Despite the Hindu-Muslim dimension to the present case and the contradictory laws of Pakistan, there is perhaps a wider application of the legal principles articulated by the Court of Appeal in this case. Given that curtailment of leave is extremely common, a significant cohort of persons who have remained in the UK lawfully and would like to have their article 8 claim decided once and for all should benefit from the outcome. The result should benefit persons who are unable to rely on any criteria under the rules to remain in the UK and depend upon the executive’s residual discretion as governed by her article 8 obligations.

In the final analysis, most Hindu residents of Pakistan say that they would never relocate to India because they fear persecution for being “Pakistani agents”. Most of my Hindu friends, in Pakistan or in London, think that Modi’s India – where Christians, Dalits and Muslims are under attack – is a much worse place than Pakistan.

While studying in St Patrick’s High School in Karachi, I knew many Pakistani Hindu families who went to settle in India but returned shortly after leaving. Strangely the great British government and their European and American allies never criticise the BJP, Modi or the murderous Hindu fundamentalist organisations such as Rashtriya Swayamsevak Sangh which are totally supported by the present Indian government.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Court of Appeal, ECHR, Families, Immigration Act 2014, Immigration Rules, India, Muslims, Pakistan, Persecution, Public Interest, Spouses, Students and tagged , , , , , , , , . Bookmark the permalink.

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