Alam & Anor v SSHD [2023] and Article 8 Appeals
This recent judgment has solidified a gradual change in the case law surrounding whether or not it is appropriate to dismiss an article 8 appeal on the ground that an appellant should instead apply for entry clearance from outside the UK. The previous position on this issue was set out in the case of Chikwamba v Secretary of State for the Home Department [2008] UKHL 40. This case said that only in very rare cases will it be appropriate to dismiss an appellant’s article 8 appeal on the ground that they should apply for entry clearance from outside the UK. Over a decade and a half later, this is no longer the case and Alam & Anor v Secretary of State for the Home Department [2023] EWCA Civ 30 goes quite some way to reverse this.
The Court of Appeal in Alam & Anor evaluated whether Chikwamba was still relevant in the case before them and Lady Justice Laing held that, whilst the outcome of Chikwamba fit its facts, it did not create “any general rule of law which would bind a court or tribunal 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”, though it may be relevant in some circumstances. These specific circumstances are where an application for leave to remain in the UK is refused on the “narrow procedural ground that the applicant must leave the United Kingdom in order to make an application for entry clearance”. This will be expanded upon below.
The facts in Alam & Anor are that both appellants entered the United Kingdom in 2007 for temporary purposes (the first appellant came on a visit visa and the second on a temporary work visa) and both then continued to reside in the UK illegally since the expiration of their visas. Both appellants are in relationships with people who are settled in the UK and these relationships were developed both whilst they were in the UK illegally, and with their respective partners’ knowledge that they were in the UK illegally.
Both appellants had their applications to remain in the UK on article 8 (family and private life) and human rights grounds refused by the Secretary of State (SSHD). They both appealed to the First-Tier Tribunal (FTT) where their appeals were refused, and then again to the Upper Tribunal (UT) where their appeals were refused again. The reasons for refusal were that the FTT, and later the UT, found that the public interest in immigration control was a weighty factor which outweighed the appellants’ individual circumstances. The appellants were informed that nothing in their circumstances set them apart from others in like situations and that they should make entry clearance applications to the UK from abroad. Various factors contributed to this, such as the ability of the second appellant’s wife to live with him in Bangladesh, and the first appellant’s lack of evidence to show that he gave his wife, who had been in foster care, needed support. However, both appellants contested the rulings and appealed to the court of appeal on the basis of what was set out in Chikwamba, stating that it was only in very rare occasions that article 8 appeals could be dismissed on the basis that the appellant’s should apply from abroad for entry clearance.
Lady Justice Laing found otherwise and came to five conclusions, three general principal issues and two conclusions specific to the appeals before her. Firstly, she found that the Chikwamba ruling may only be applicable in an appeal when a leave-to-remain application is refused on the specific procedural ground that an applicant must leave the United Kingdom in order to submit an application for entry clearance. Secondly, she said that even in this situation, a thorough examination of the article 8 claim is still required. Lady Justice Laing stated that if there were other considerations that stand against the article 8 claim, they must be given due weight and may still justify an appellant having to leave the United Kingdom and submit an application for entry clearance. Furthermore, a thorough examination of all the aspects of any article 8 claim is always required, even if the application is not refused on the above-mentioned procedural ground.
Specific to the case before her, Lady Justice Laing found that neither tribunal’s handling of Chikwamba erred in law and that the FTT in the case of the first appellant also did not err in law by using the test of undue harshness rather than the test of insurmountable obstacles. The end result of Lady Justice Laing’s conclusions for the appellant’s was that Chikwamba did not guarantee that their appeals on article 8 grounds could not be dismissed and it also did not even provide much of an argument as their appeals were not merely dismissed on the narrow ground that they should have made an application for entry clearance from outside the UK. Whilst not confined to its facts, Chikwamba’s effect has been greatly narrowed.
Further, in Alam, it was also confirmed, via the case of Younas (section 117B(6)(b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC), that there will be a compelling public interest in requiring an application to be submitted from abroad if the appellant lied to or misled the Entry Clearance Officer (ECO) regarding their intentions whilst applying for a visit visa. The Tribunal specifically noted in Mr. Alam’s case that he had disregarded the undertaking he had made to the ECO prior to entering the UK, and Lady Justice Laing made a point of highlighting this.
For future applicant’s this result is not totally negative. The case of Younas before the UT set out four questions that need to be answered when considering whether removal in order to apply for entry clearance would be disproportionate. Firstly, whether temporary removal is sufficient to engage article 8. Secondly, whether an application for entry clearance is likely to be granted. Thirdly, how much weight should be attached to public interest (and Alam & Anor seems to say here that this weight is significant – though it isn’t clear how significant it is when there are no outright lies on the part of an appellant, such as one who did not actually interact with an ECO by using an e-gate for instance). Finally, whether the removal is proportionate, given that Alam & Anor has now state that a full analysis of the article 8 claim is necessary. Various factors that may weigh here include whether there is a child involved or whether there are any individual factors that may prove insurmountable obstacles to the appellant and their spouse living outside the UK together and continuing their family life. As always, individual circumstances should always be closely examined and put at the forefront. Decisions on cases involving article 8 will still very much depend on their circumstances.
By : Tiffany Carpenter