Alam & Anor v Secretary of State for the Home Department [2023] EWCA Civ 30 (19 January 2023)
The Court of Appeal found in these cases that Chikwamba is only relevant if the SSHD refuses an application on the narrow procedural ground that the claimant should be required to apply for entry clearance from abroad. Since that did not apply in the cases of two Bangladeshi nationals, Shah Md Jahangir Alam and Ataur Rahman, the decision of the House of Lords in Chikwamba v SSHD [2008] UKHL 40 was irrelevant to the disposal of their appeal and so the conjoined appeals were accordingly dismissed. Both Alam and Rahman entered the UK for temporary purposes in 2007 and had lived in the UK unlawfully for many years after the expiry (in January 2008 and April 2009 respectively) of their leave. Each wished, despite all that, to stay in the UK, 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. Overall, Elisabeth Laing LJ extracted three matters of general principle which are that (i) the decision in the case of Chikwamba is only potentially relevant on an appeal when an application for leave to remain is refused on the narrow procedural ground that the applicant must leave the UK in order to make an application for entry clearance, (ii) even in such a case, a full analysis of the article 8 claim is necessary and if there are other factors which tell against the article 8 claim, they must be given due weight, and they may make it proportionate to require an applicant to leave the UK in order to apply for entry clearance, and (iii) a fortiori, if the application is not refused on that procedural ground, a full analysis of all the features of the article 8 claim is always necessary.
In relation to the cases of Alam and Rahman, Elisabeth Laing LJ held that neither tribunal erred in law in its approach to Chikwamba. Moreover, she found that the FTT did not err in law in the case of Alam by applying the test of “undue harshness” rather than the test of “insurmountable obstacles”. Mr Alam was born on 1 April 1986 and he was married to Ms Sharman Khatun who was born on 19 July 1997 and is a British citizen. He first came to the UK on 17 July 2007 with entry clearance as a visitor and with permission to remain until 3 January 2008. He overstayed and then sought leave to remain and 2012 and again in 2018. The former application was with no right of appeal, in 2013. He made a further application in 2018 on article 8 grounds. The SSHD refused that application and certified it as clearly unfounded. He sought judicial review of that decision. The SSHD maintained that decision but on 30 May 2019, the SSHD gave him an in-country right of appeal. The FTT found that Mr Alam’s private rights are not such that the wider public interest should be set aside and there was nothing exceptional in his case which entitled him to be treated differently from those who comply with the law. The UT decided that there was no error of law in the FTT’s determination and that the FTT did in fact take the Chikwamba point into account.
As to the case of Mr Rahman, the FTT dismissed his appeal in 2018 and his appeal rights became exhausted in May 2019. He made further submissions on 13 May 2019 but the SSHD refused those in a decision dated 21 June 2019. He appealed to the FTT, it held that taken on its own, Mr Rahman’s position would not engage his human rights. His private life, said the FTT, was “contingent upon having been in this country for a number of years with a precarious immigration status” and “the burning issue” was whether if he returned to Bangladesh that would make his wife’s condition so much worse that it would interfere with her family life. There was no evidence that, if returned to Bangladesh, Mr Rahman’s wife would stay in the UK. She would probably get better if she went to Bangladesh with Mr Rahman and so the SSHD’s decision was proportionate. Subsequently, the UT decided that the public interest in immigration control was a weighty factor and that Mr Rahman had been in the UK for about 14 years, but had only had leave to remain until 2009.
He had been in the UK ever since without leave and he could not satisfy the Immigration Rules and the maintenance of effective immigration control was in the public interest. It required the removal of those who were in the UK without leave and who could not meet the requirements of the Rules.
Overall, the UT balanced the factors for and against Mr Rahman and it concluded that the public interest outweighed the interference with his private and family life.
Background
Part 5A of the 2002 Act provides for where a court or tribunal had to determine whether a decision under the Immigration Acts was a breach of article 8 of the ECHR and therefore would be unlawful under section 6 of the Human Rights Act 1998.
Section 117A(2) provides 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 UK unlawfully, and that (v) a private life or to a relationship formed with a qualifying partner when a person’s immigration status was precarious.
The Immigration Rules 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. And observably, 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.
Grounds of Appeal
The following grounds of appeal were advanced before the Court of Appeal by Mr Alam.
First of all, that the UT misapplied the principle in Chikwamba and erred as to its relation to the public interest considerations found in section 117A-B ( Part 5A) of the Nationality, Immigration and Asylum Act 2002.
Secondly, the FTT erred in law in concluding that there were no insurmountable obstacles to Mr Alam’s removal to Bangladesh. Mr Rahman had permission to argue one ground of appeal only, i.e. Mr Alam’s first ground.
On the first ground, Mr Alam said that the FTT and the UT erred in law in their approach to section 117B because they did not understand its flexibility. He submitted they should have concluded that there was no public interest in dismissing his appeal when, if he were to leave the UK and to apply for entry clearance, he would be certain to be given it.
On the second ground he attacked the FTT’s reasoning: its finding in that Mr Alam’s wife had immersed herself in his culture was inconsistent with a finding that she did not speak the language as fluently as he does and she was brought up in a white English foster home during her teens; that finding was perverse and inadequately reasoned—and there was no evidence to support it; the FTT had applied the wrong test and it did not accept that life in Bangladesh would be “unduly harsh” for Mr Alam’s wife—that test applies in deportation cases (section 117C(5)) and it is much more stringent than the “insurmountable obstacles” test; the FTT failed to have any or any proper regard of’ its finding that Mr Alam’s wife was vulnerable; there was “simply no cause for concern” about the circumstances of his marriage to his wife and the age difference was irrelevant to the issues; and in applying the insurmountable obstacles test, the FTT had failed to follow the steps suggested by this Court in paragraph 36 of Lal v SSHD [2019] EWCA Civ 1925.
Mr Rahman submitted that the UT misunderstood Agyarko and that it erred in reaching the conclusion that Chikwamba cannot apply if the couple can be expected to continue their family life abroad. Like Mr Alam, he relied on paragraph 6 of Lord Scott’s speech in Chikwamba, and paragraphs 34 and 51 of Hesham Ali and of Agyarko, respectively. If a person was in the UK unlawfully when the relationship was formed, but “would have been permitted to reside here lawfully if an application were made from abroad, the latter point should be taken into account”.
Indeed, it should be taken into account in that if the applicant “were otherwise certain to be granted leave to enter, at least if an application were made from outside the UK, there might be no public interest in his or her removal”. There were no aggravating features in Mr Rahman’s case, and it was “a very clear case”. The SSHD submitted that Hayat shows the limited extent to which Chikwamba may be relevant: only if the application is refused on the narrow procedural ground that the applicant should first leave the UK and apply for entry clearance, and, that even in such a case, it is necessary fully to assess the strength of the applicant’s article 8 case. The SSHD submitted that there is no trace in Part 5A of the wide “Chikwamba principle” for which the appellants contend. Overall, in both appeals, the article 8 case overall was weak, and the tribunals were entitled to dismiss the appeals on the basis that those weak article 8 cases were clearly outweighed by the public interest in maintaining immigration control. It was indeed, as Coulson LJ had suggested in his remarks when he gave permission to appeal, that the answer was that the FTT was entitled to make the findings which it did make.
Court of Appeal
Elisabeth Laing, Peter Jackson and Snowden LJJ examined the jurisprudence generated by the Chikwamba case and they took a detailed look at VW (Uganda) v SSHD [2009] EWCA Civ 5, Hayat v SSHD [2012] EWCA Civ 1054, R (Kaur) v SSHD [2018] EWCA Civ 1423, TZ (Pakistan) v SSHD [2018] EWCA Civ 1109and Parveen v SSHD [2018] EWCA Civ 932.
The court further examined the UT cases of Thakral v SSHD [2015] UKUT 96 (IAC), Younas (section 117B(6)(b); Chikwamba; Zambrano) [2020] UKUT 129 (IAC). It also considered and the Supreme Court authorities of Hesham Ali v SSHD [2016] UKSC 60, R (Agyarko) v SSHD [2017] UKSC 11 and Rhuppiah v SSHD [2018] UKSC 58 (see here).
Elisabeth Laing LJ explained that in Chikwamba, the SSHD met a very strong article 8 case by relying on an inappropriately inflexible policy. In her view, the decision does not decide any wider point than that that defence failed. She said that three other matters need to be borne in mind when it is cited nowadays. First of all that the case law on article 8 in immigration cases has developed significantly since Chikwamba was decided. Secondly, it was decided before the enactment of Part 5A of the 2002 Act. Section 117B(4)(b) now requires courts and tribunals to have ‘regard in particular’ to the ‘consideration’ that ‘little weight’ should be given to a relationship which is formed with a qualifying partner when the applicant is in the UK unlawfully.
Thirdly, when Chikwamba was decided there was no provision in the Rules which dealt with article 8 claims within, or outside, the Immigration Rules. By contrast, by the time of the decisions which are the subject of the appeals of Mr Alam and Mr Rahman, Appendix FM dealt with such claims. 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. It was Elisabeth Laing LJ’s view in light these three matters that:
107. Those three points mean that Chikwambadoes 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 has no right to be in the United Kingdom applies to stay here on the basis of his article 8 rights. In my judgment, Chikwambadecides that, on the facts of that appellant’s case, it was disproportionate for the Secretary of State to insist on her policy that an applicant should leave the United Kingdom and apply for entry clearance from Zimbabwe.
Four aspects of Lord Brown’s reasoning in Chikwamba are also significant. First of all, he rejected the submission that an appeal could never be dismissed on the ground that the appellant should be required to leave the UK and apply for entry clearance from abroad. Instead, he recognised that it could be proportionate in some cases for the SSHD to insist on removal for that purpose. He considered that the appellant’s family would “have to be allowed to live together here” eventually. Further, it was not feasible for family life to be established in Zimbabwe because the appellant’s husband was a refugee from Zimbabwe. And finally Lord Brown was sceptical about the value to be put on the public interest in immigration control in that case.
Only the decisions of the Court of Appeal in VW (Uganda) and Hayat—relied on by the appellants—were decided by reference to Chikwamba. The other decisions were cases in which comments were made about Chikwamba. But those comments were not part of the Court of Appeal’s decision. The observations about Chikwamba made by the Supreme Court were also comments which were not part of the Court’s decision. Neither comment went further than to say that—if an application for entry clearance is certain to succeed—that might make removal disproportionate.
Elisabeth Laing LJ said that the core of the reasoning in Hayat is that Chikwamba is only relevant when an application for leave is refused on the narrow procedural ground that the applicant must leave and apply for entry clearance, and that, even then, a full analysis of the article 8 claim is necessary. If there are other factors which tell against the article 8 claim, they must be given weight, and may make it proportionate to require an applicant to leave the UK and to apply for entry clearance. She considered that, in the light of the later approach of the Supreme Court to these issues, the approach in Hayat is correct and a fortiori, if the application for leave to remain is not refused on that narrow procedural ground, a full analysis of all the features of the article 8 claim is always necessary. In the round her Ladyship held that:
111. I do not consider that the reasoning in VW (Uganda), to the extent that I can understand it, binds this Court. First, the Rules and the statutory background were different then. Second, the Supreme Court has now recognised that the insurmountable obstacles test is the right test, so the premise of Sedley LJ’s analysis is wrong. Third, having applied the wrong test, Sedley LJ left hanging in the air the question whether (applying his test) it was reasonable for the family to continue its family life in Uganda. It must be supposed that he thought that it was not necessary to ask that question if it was disproportionate to require the first appellant to leave the United Kingdom and to apply for entry clearance; and that that was decisive of the article 8 claim, but he does not spell out that step in his reasoning, and it is clearly a wrong step, for the reasons which I have just given.
112. The two present appeals, subject to A1’s ground 2, are both cases in which neither appellant’s application could succeed under the Rules, to which courts must give great weight. The finding that there are no insurmountable obstacles to family life abroad is a further powerful factor militating against the article 8 claims, as is the finding that the relationships were formed when each appellant 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 appellants’ weak article 8 claims, and to hold that removal would therefore be proportionate. Neither the F-tT in A1’s case nor the UT in A2’s case erred in law in its approach to Chikwamba.
113. Moreover, the Secretary of State did not refuse leave in either case on the ground that the appellant should leave the United Kingdom and apply for entry clearance. I accept Mr Hansen’s submission, based on Hayat, that Chikwamba is only relevant if the Secretary of State refuses an application on the narrow procedural ground that the appellant should be required to apply for entry clearance from abroad. It does not apply here, because the Secretary of State did not so decide. Chikwamba is irrelevant to these appeals. I also reject the appellants’ submission that the UT determination in Younas was wrong; in Younas and in Thakral, the UT’s approach was correct.
114. Rhuppiah does not help the appellants. Even if there is some flexibility in section 117B and section 117B(4)(b), there is, on the findings which the tribunals were entitled to make, no exceptional positive feature of the claim of either appellant which could enable it to succeed. There is, moreover, in each case (and subject to ground 2 in A1’s case), a further negative factor, that is, that family life could continue abroad.
Next, dismissing both appeals, her Ladyship addressed Mr Alam’s six points in relation to ground 2. She found that a person can immerse herself in a culture while not speaking the relevant language as fluently as a person whose mother tongue it is. Mr Alam did not have leave to argue that there was no evidence to support the findings of the FTT.
In the absence of a challenge to those findings at the appropriate time (that is, when Mr Alam applied for permission to appeal from the FTT to the UT), the court must assume that there was evidence to support both findings. Moreover, it cannot be said that the UT erred in law in not accepting a challenge to the FTT’s findings which Mr Alam did not have leave to make).
The FTT did use the phrase “unduly harsh”. In the context of its reasoning as a whole— which were summarised—she considered that this phrase was an isolated slip, and that the FTT in substance applied the right test. The FTT used the phrase “insurmountable obstacles” six times and the phrase “unduly harsh” only once.
This argument was hopeless. The FTT clearly took into account its finding that Mr Alam’s wife was vulnerable. It was trite law that the weight to be given to a relevant factor is for the decision maker, subject to Wednesbury. The FTT was entitled to express its concerns about the circumstances in which the relationship had been formed, against the advice of Mr Alam’s wife’s social worker, at a time when she was in care and vulnerable, when he had not initially told her that he was in the UK unlawfully, and in light of the significant age difference between the couple. There was in any event nothing in the reasoning of the FTT which showed that those justified concerns were a significant element in its decision.
The court said that the FTT’s approach to the application of the insurmountable obstacles test was unimpeachable. Elisabeth Laing LJ said that the test uses ordinary language, and had been authoritatively explained by the Supreme Court in paragraph 60 of Agyarko. The FTT quoted extensively from Agyarko. Elisabeth Laing LJ did not consider that the FTT’s failure to refer to Lal was an error of law.
Comment
Overall, the Court of Appeal said that Chikwamba is only relevant if the SSHD refuses an application on the narrow procedural ground that the claimant should be required to apply for entry clearance from abroad. By doing so, the Court of Appeal rejected a wide reading of the Chikwamba principle and Chikwamba does 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 has no right to be in the UK applies to stay here on the basis of his article 8 rights.
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