Court finds that Chikwamba only relevant in certain circumstances

In a recent judgement, Alam and another v Secretary of State for the Home Department [2023] EWCA Civ 30, the Court dismissed the Appellant’s appeals against the refusal of their leave to remain application.

The Appellants (SA and AT) both lived in the UK unlawfully. They wed British citizens and made an application for leave to remain in the UK. The requirements under Appendix FM meant that the Appellants should have made this application from abroad.

The Appellants inter alia relied on the judgement of Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 (Chikwamba). In Chikwamba it was held that it would be disproportionate for the Appellant to have to return to their home country simply to make an application for entry clearance that would be bound to succeed. The Court went on to state that in rare cases that the Tribunal should dismiss an appeal under Article 8 solely on the ground that the Appellant could re-apply for entry clearance from their home country.

Alam and another v Secretary of State for the Home Department

The Court considered this case and considered the interpretation of the decision made in Chikwamba and whether this had any bearing on this case. The Court determined that Chikwamba is only potentially relevant on an appeal when an application for leave to remain is refused on the narrow procedural ground that the applicant must leave the United Kingdom in order to make an application for entry clearance. Even in such a case the full analysis of the article 8 claim is necessary balancing against the Public Interest Considerations.

Section 117B is headed ‘Public interest considerations applicable in all cases’. It lists five considerations:

1. The maintenance of effective immigration control is in the public interest.

2. It is in the public interest that people who ask to enter, or to stay in, the United Kingdom, are able to speak English (for two stated reasons).

3. It is in the public interest that such people are financially independent (for two similar reasons).

4. ‘Little weight should be given’ to a private life, or to a relationship with a qualifying partner, which is established when a person is in the United Kingdom unlawfully.

5. ‘Little weight should be given’ to a private life or to a relationship formed with a qualifying partner when a person’s immigration status is precarious.

The Court held in both cases in which neither appellant’s application could succeed under the Rules, to which courts must give great weight. The finding that there are no insurmountable obstacles to family life abroad is a further powerful factor militating against the article 8 claims, as is the finding that the relationships were formed when each appellant was in the United Kingdom unlawfully. The relevant tribunal in each case was obliged to take both those factors into account, entitled to decide that the public interest in immigration removal outweighed the appellants’ weak article 8 claims, and to hold that removal would therefore be proportionate.

Our comments

The findings in Alam and another v Secretary of State for the Home Department [2023] EWCA Civ 30 provide a reminder that the principles of Chikwamba cannot be simply relied on to avoid making an application for leave to enter from abroad. An applicant must have strong article 8 grounds which renders public interest in removal to be disproportionate.

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