Law

When does someone who does not meet the requirements of the Immigration Rules, but has a claim to family life, succeed in that claim, in circumstances where there are no children and the other party on whom they depend does not have settled status in the UK?

This question has been answered by the Upper Tribunal in Hayat (nature of Chikwamba principle) Pakistan [2011] UKUT 00444 which has effectively further expanded the applicability of the Chikwamba principle. It decisively confirms that the Chikwamba principle is not confined to cases where children are involved or where the person with whom the appellant is seeking to remain has settled status in the United Kingdom.

To recap, Chikwamba : was the seminal decision by the House of Lords in which it was decided that it was no longer necessary to force immigrants that are in the UK illegally to return to their country to apply for entry clearance in order to rejoin their families.

It replaced what was known as the 'insurmountable obstacles test' and substituted it with the 'reasonableness' test. In simple terms, this means that the Home Office must now not look at what obstacles may exist before requiring a person to return to their country to apply for entry, but must simply consider whether it is reasonable to require this in the particular circumstances of the case.

The appellant in Chikwamba was a female Zimbabwean who had unsuccessfully sought asylum in the United Kingdom and whilst here, had married a Zimbabwean national, who was a refugee. The couple had a 4 year old daughter together.

This was a very important decision which the Home Office naturally sought to limit. They often refused cases by distinguishing Chikwamba, especially where there were no children, or the spouse did not have a long-term immigration status.

There followed a case called MA (Pakistan in which the Court of Appeal decided that Chikwamba was not to be confined only to cases where children are involved, but also in other family cases. It was decided that the real test is whether there is any sensible reason to require removal. The Upper Tribunal has now gone further in Hayat.

In Hayat, the appellant was a citizen of Pakistan who entered the United Kingdom on 23 January 2007 as a student. He then applied to vary his visa to the Tier 1 Post-Study Worker. Before the end of his PSW visa, he applied for a visa as the partner of a female Pakistani national who was on a student visa. The parties had been living together in a relationship since November 2009 and in fact, married on 14 October 2010.

The Home Office duly refused Hayat's application because he was not extending his visa from being a partner or spouse of a Points Based System migrant as required by the rules. His last visa was under Tier 1. It was agreed by both parties that Hayat could not succeed under the strict requirements of the immigration rules. The argument made on his behalf was therefore that he succeeded under Article 8, which is the human right to a family life.

Hayat's wife was on a student's visa and had a visa which was valid until 31 May 2014, in order to complete her ACCA qualification. He told the Immigration Judge that he had 'done everything' for his wife 'such as picking her up from college, doing the shopping and giving her moral support and that they depend upon one another very much and it would be very hard for her to be alone in the United Kingdom'. The wife told the court that she has no other relatives in the United Kingdom and that they had therefore become heavily dependent on each other, and found it unthinkable to live apart.

The Immigration who heard the first appeal concluded that the parties' family life 'can continue in Pakistan although I acknowledge that the appellant's wife will not wish to return whilst her course is ongoing'. He went on to say;

'I find that the appellant and his wife have only been in the United Kingdom on a temporary basis and they could have had no expectation of a right to remain in order to further their family life, ties and relationships. Unlike the applicant in Chikwamba the appellant is not seeking leave to settle in the United Kingdom as a spouse and I find that the decision is proportionate in that it serves a public end. I find that the decision of the respondent is not sufficiently serious to amount to a breach of rights of the appellant under Article 8'.

Accordingly, the Immigration Judge dismissed the appeal, both under the Immigration Rules and on human rights grounds. The appeal went to the Upper Tribunal.

The Upper Tribunal made a finding that the Immigration Judge had made a material error of law by saying that Hayat was not seeking leave to settle but just to stay whilst his wife studied and that therefore the principle from Chikwamba did not apply. It proceeded to set aside the determination of the Immigration Judge and proceeded to re-make the decision in the appellant's appeal.

It extracted the main point from Chikwamba, which is that if the only issue raised by the Home Office really is that the applicant should travel abroad in order to apply for a visa, and the other requirements are satisfied, then the application should normally succeed. Most importantly, the Upper Tribunal emphasised that each case depends on its own facts.

For example, if Mr Hayat's wife had been due to finish her studies only a few weeks after the date of the hearing, and was intending to return to her country of origin, and the evidence was such that she did not need the appellant to be present with her while she finished her studies and prepared to leave, then the Chikwamba principle would have had nothing to add to Hayat's appellant's case.

The Upper Tribunal pointed out that the fact that the wife was on a student visa, which is not settlement, does not negate the Chikwamba principle. The relevant factors in his favour were;

1. Hayat's wife was entitled to remain and study here until 2014.
2. If Hayat were to be removed, it was highly likely that she would be without his help and support for a very substantial proportion of that time and she would find it difficult to continue her studies.
3. The evidence was that she needed Hayat's help and support during her studies.
4. Both parties had not breached any Immigration Rules.

The principle in Chikwamba was therefore applicable.
This important case therefore confirms that the courts continue to be open to persuasion and that there is greater scope to argue Chikwamba in a variety of factual situations. This is because the concept of family by nature requires a case by case assessment.

Ultimately, it requires imaginative lawyering and resourcefulness to persuade a court why it is not reasonable to require removal in a particular case. Taffi Nyawanza is the principal of Genesis Law Associates, a specialist immigration and asylum law firm in Birmingham. He can be contacted on tnyawanza@genesislaw.co.uk or ph. 0121 212 0451or visit Genesis Law Associates' website at www.genesislaw.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.