The Relevance Of Chikwamba To Human Rights Appeals

• Jurisdiction: European Union
• Law Firm: Richmond Chambers Immigration Barristers
• Subject Matter: Litigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, General Immigration, Work Visas
• Author: Mr Alex Papasotiriou
• Published date: 17 February 2023

In Alam & Anor v Secretary of State for the Home Department [2023] EWCA Civ 30, the Court of Appeal had to consider the relevance of the decision of the House of Lords in Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 to human rights appeals at present.

The Upper Tribunal had dismissed the appeals of the two appellants, as had the First-tier Tribunal before it. The appeals were against the Secretary of State's decisions to refuse the appellants' applications for leave to remain in the UK on the basis of their family life with their British citizen partners. The appellants had entered the UK on a temporary basis and had remained unlawfully after the expiry of their leave.

The appellants had appealed to the Court of Appeal on the basis that the Upper Tribunal had misapplied the principle in Chikwamba and had erred as to its relation to the public interest considerations in section117A-B of the Nationality, Immigration and Asylum Act 2002.

The Court of Appeal considered the relevant authorities. It was noted that, in Chikwamba the Secretary of State had refused the appellant's claim on the ground of a policy applicable at the time, which stated that it was likely proportionate to require a family to be separated for a short time while one spouse left the United Kingdom and applied for entry clearance. It was further noted that, whilst the House of Lords allowed the appeal, the argument that an appeal could never be dismissed on the basis that the appellant ought to leave the UK and apply for entry clearance from abroad was rejected.

The Court of Appeal further considered the case of VW (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 5, in which that Court had allowed outright one of the appeals against the decision of the Asylum and Immigration Tribunal on the basis that, despite factors that weighed against the appellant's article 8 claim, the impact of the refusal on the family and a British citizen child, in circumstances where it was likely that the appellant would eventually secure entry clearance, was disproportionate; the decision in Chikwamba was held to tip the scales in the appellant's direction.

Hayat v Secretary of State for the Home Department [2012] EWCA Civ 1054 was also considered. In that judgment, it was held, applying Chikwamba, that the refusal of a claim on the procedural ground that policy required the applicant to apply for entry clearance from abroad was capable of engaging article 8, but...