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Court of Appeal gives hope to married asylum seekers
By Taffy
Nyawanza
“So what on earth is the point of sending her back? Why cannot
her application simply be made here?”
These are the telling words of Lord Scott of Foscote, one of the 5 Lord Justices who sat and passed the landmark and generous ruling in Chikwamba v SSHD [2008] UKHL 40.
Chikwamba was a Zimbabwean lady who came to the UK in 2002 and claimed asylum. Her asylum claim was refused but she remained in the UK because of a temporary suspension of returns of failed asylum seekers to Zimbabwe.
In that time, and while in that state of limbo, she married Mr Magaya, a fellow Zimbabwean that she had grown up with, and who had refugee status in the UK.
In 2004, the couple were blessed with a daughter. It was accepted that the marriage was not a marriage of convenience, in-spite of the curious fact that Chikwamba had left behind in Zimbabwe two children by a man from whom she was estranged.
It was also accepted that Mr Magaya could not return to Zimbabwe because he was a refugee in the UK.
In November 2004, removals of failed asylum seekers to Zimbabwe resumed. Chikwamba approached the courts to resist removal. The question before the courts was whether she should be required to return to Zimbabwe in order to apply for entry clearance from Zimbabwe.
Ranged against her was the well known and leading case of Mahmood [2001] 1 WLR 840 which the Home Office often use in similar cases. It simply states that in Article 8 cases of this nature, an appellant should return abroad to obtain entry clearance when required to do so under the rules, unless there are ‘insurmountable obstacles’.
The Home Office’s standard position was premised on their rigid argument that they have a legitimate aim to maintain a system of immigration control and prevent queue jumping. In case after case, they would argue that there were no ‘insurmountable obstacles’ preventing an applicant from travelling abroad for entry clearance. And over the years, the courts have grappled with what exactly amounts to ‘insurmountable obstacles’.
But Chikwamba has arrived and brings much needed relief to applicants in similar cases. Lord Brown of Eaton-under-Heywood, the judge who gave the main speech in the case, concluded that sometimes it will be reasonable and proportionate to dismiss an Article 8 claim on the basis that entry clearance should be sought from abroad, but 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.
This is a remarkable and far reaching decision. It means that the burden has now shifted to the Home Office to show that in an Article 8 case, especially those involving children, it is reasonable to require an applicant to go abroad for entry clearance.
Lord Brown also considered that there will be other relevant considerations such as whether the case is strong under the immigration rules. This means that if an applicant fulfills the other requirement of the spouse visa such as the genuineness of the marriage, adequate accommodation and maintenance, among others, then it will be less appropriate to remove to obtain entry clearance.
The individual’s immigration history is also relevant, as is the likely timescale in which a decision would be taken abroad. This ties in with the likely degree of family disruption involved in having to go back to apply for entry clearance. If for instance there are young children and limited options in child-care arrangements, then this would be a very relevant factor.
Another relevant factor will always be the conditions of the country of origin. The Lords accepted that conditions in Zimbabwe are “harsh and unpalatable” and Mrs Chikwamba might face the prospect of remaining there in such conditions for some months before obtaining entry clearance before she could return to resume her family life.
But the beauty and wide reach of this decision is that even where under the immigration rules the claim for entry clearance is likely to fail, this would mean lengthy appeal proceedings meaning lengthy separation of the family, and so similarly it would be less appropriate to remove. Similarly, and logically, if the Applicant cannot apply under the immigration rules at all, removal would almost certainly be disproportionate as it will result in permanent breach of family life.
When big decisions such as Chikwamba are pronounced by the courts, it is always with a flourish. Apart from the Lords ordering the Home Office to pay the appellant’s costs, one of the judges expressed astonishment that the case should have come this far. He went on to say that policies that involve people cannot be, and should not be allowed to become rigid, inflexible rules and said that this would be the kind of bureaucracy of which the author Kafka wrote in his famous satires, and which cannot be allowed to take root in the UK and which the courts must see that it does not.
What will this case mean?
Chikwamba is a very important decision, overturning as it does a long established principle requiring people that are in the UK illegally to return abroad and join the queue for entry clearance in order to rejoin their families. It will benefit people who have had their applications or appeals refused on the basis that whilst a family life may have been established, there is no reason why they cannot return to their countries for entry clearance.
It seems to me, therefore, that in a typical case, the way forward would be to either make new representations to the Home office, or to apply for leave to remain as a spouse under Rule 284 of the Immigration Rules, on form FLR (M), and make covering representations why Rule 284 (i), which requires an applicant to show that they have entry clearance or other existing leave, cannot be met, but more importantly, why it would be disproportionate to require the applicant to return to their home country for the entry clearance.
Taffy Nyawanza works for Bake & Co Solicitors of Birmingham. He can be contacted on info@bakesolicitors.co.uk, ph. 0121 616 5025 or visit Bake & Co Solicitors’ website at www.bakesolicitors.co.uk.
Disclaimer:
This article only provides general information and guidance on immigration
law. It is not intended to replace the advice or services of a solicitor.
The specific facts that apply to your matter may make the outcome different
than would be anticipated by you. The writer will not accept any liability
for any claims or inconvenience as a result of the use of this information.
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