Chikwamba v Secretary of State for the Home Department

On an Article 8 appeal, proportionality is for the appellate authority to decide for itself. The relevant threshold is whether the facts are truly exceptional so that proportionality requires an outcome outside the Immigration Rules, HC 395; Wednesbury deference to the Secretary of State is inappropriate. A person who entered without entry clearance may ordinarily be required to leave and apply from abroad, even if otherwise eligible. A refugee sponsor, family-unity considerations or possible hardship does not itself make a case exceptional. The tribunal's assessment that return to apply for spouse entry clearance was proportionate was upheld.

Ms Chikwamba, a Zimbabwean national, entered the United Kingdom seeking asylum. She later married a Zimbabwean refugee in the United Kingdom, and they had a daughter. The Secretary of State refused her asylum, humanitarian protection and exceptional leave applications. An adjudicator dismissed her appeals, including her Article 8 claim, and the Immigration Appeal Tribunal dismissed her further appeal on 25 January 2005.

The central issues were whether the tribunal had applied the correct proportionality test, whether conditions in Zimbabwe and the suspension of removals were relevant exceptional circumstances, and whether the appellant's husband's refugee status and family-unity considerations justified departure from the entry-clearance requirements.

Lord Justice Auld delivered the judgment, with Lord Justices Jonathan Parker and Lloyd agreeing.

1. Disposition and proportionality. The appeal was dismissed. The guidance in M (Croatia) that relief was available only where no reasonable Secretary of State could have made the decision had been overruled by Huang. The appellate authority had to decide proportionality for itself. It could allow an Article 8 appeal outside the Immigration Rules, HC 395 only where the case was truly exceptional on its particular facts. Although the tribunal had referred to M (Croatia), its detailed reasoning showed that it had independently assessed exceptionality and had not applied a Wednesbury test.
2. Entry clearance and family unity. A person who entered without the required entry clearance could ordinarily be required to leave and apply from abroad, even if she might otherwise qualify for admission. This protected orderly immigration control and discouraged circumvention of the entry-clearance system. The temporary suspension of removals to Zimbabwe was not comparable to a policy granting leave, as in Shala. Recognition of the sponsor as a refugee, the genuineness of the marriage, and family-unity considerations did not themselves create exceptional circumstances. The tribunal was entitled to treat the case as comparable, for this purpose, to that of a spouse of a British citizen or a person with indefinite leave.
3. Conditions in Zimbabwe. The Court left open whether conditions below the Article 3 or Article 8 thresholds could contribute to a basket of exceptional circumstances. On the evidence in this case, the possible circumstances were Article 3 or Article 8 or nothing. The AA determination concerned identifiable involuntary returns and could not be used as evidence in a different appeal or as establishing a point of law. Reliance on the risk of involuntary return after refusing a voluntary return would be absurd.

The appeal was dismissed with the appellant's costs subject to detailed assessment. Permission to appeal was refused.

• Court of Appeal (Civil Division): the appeal from the Immigration Appeal Tribunal was dismissed; [2005] EWCA Civ 1779.
• Immigration Appeal Tribunal: dismissed the appellant's appeal on 25 January 2005 and held that she could be required to return to Zimbabwe to apply for admission as a spouse under paragraph 281 of the Immigration Rules, HC 395.
• Adjudicator: dismissed the appeals on 14 May 2003, rejecting the asylum, Article 3 and Article 8 claims.