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What’s left now of Chikwamba v SSHD [2008] UKHL?

Sharp-eyed observers will have seen already the recent decision of the Upper Tribunal in Younas (section 117B (6) (b); Chikwamba; Zambrano) [2020] UKUT 129 (IAC) which in my view is legally problematic in several different ways. This short article merely concentrates on one aspect of the decision. In Chikwamba [44] Lord Brown stated “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”.

This view to no great surprise given the tendancy of the (now) Supreme Court not to depart from its own decisions was endorsed in R (Agyarko) v SSHD [2017] UKSC 11 [51] “If on the other hand an applicant—even if residing in the UK unlawfully-was certain to be granted leave to enter, at least if an application was made from outside the UK, then there might be no public interest in his or her removal. The point is illustrated by the decision in Chikwamba”.

Now the Upper Tribunal, and to a certain degree the Court of Appeal have never been that happy, that these statements are legal principles to be applied, without more (see SSHD v Hayet (Pakistan) [2012] EWCA Civ 1054, R (Kaur) v SSHD [2018] EWCA Civ 1423, both of which stated it would be fact specific as to whether an appellant could show entry clearance was certain, and appeared to consider the public interest as well. Although see TZ (Pakistan v SSHD [2018] EWCA Civ 1109 [28] (not cited by the Tribunal in the present case) for a different view). Indeed, the Tribunal insisted that a proportionality exercise under Article 8 ECHR based on evidence would need to show temporary removal being disproportionate—see R (Chen) v SSHD IJR [2015] UKUT 189 (IAC), and Lord Brown was not laying down a legal test. This appears to be drifting a long way from the comparative rare circumstances of refusal.

The importance of Younas is that the Tribunal now consider section 117B (1) of the 2002 Act, which states that the maintenance of immigration controls is in the public interest, and so they apply a public interest test (see [95], and state that the Appellant’s immigration history, as she was found to be an overstayer who had no intention of leaving the country after she arrived was such that the public interest is served in the maintenance of effective immigration controls [98]. It is pointed out that Chikwamba itself pre dates Part 5A of the 2002 Act [90]. So it appears where there is clear breach of immigration control the Tribunal will hold the public interest requires entry clearance even if the Rules are in fact met. There is, it appears only a narrow window to apply this leading decision of the House of Lords/Supreme Court presently.

Stephen Vokes, Head of the Immigration, Asylum, and Human Rights team, No.8 Chambers.