Chikwamba v Secretary of State for the Home Department

The House of Lords allowed the appellant's appeal under section 65 of the Immigration and Asylum Act 1999 (now sections 82 and 84 of the Nationality, Immigration and Asylum Act 2002), holding that an in-country Article 8 family-life appeal should be dismissed in favour of requiring the appellant to apply for entry clearance abroad only in relatively rare circumstances. The court emphasised that the proportionality of removal must be assessed in light of the practical disruption and likely duration of separation, particularly where children are involved, and that general policy requiring applicants to apply from abroad cannot be elevated into a rigid rule.

The court concluded that, on the facts, removing the appellant (a failed asylum seeker who married a settled refugee in the United Kingdom and had a United Kingdom-born child) to Zimbabwe to apply for entry clearance would be disproportionate and would violate Article 8 rights. The appeal was therefore allowed.

The appellant, a Zimbabwean national, arrived in the United Kingdom in April 2002 and claimed asylum. Her asylum claim was refused and removals to Zimbabwe were initially suspended. While in the United Kingdom she married a refugee who had been granted asylum and in 2004 they had a daughter born in the United Kingdom. When the suspension of removals to Zimbabwe was lifted the Secretary of State sought to remove the appellant. The appellant appealed under section 65 of the Immigration and Asylum Act 1999, relying on Article 8 of the European Convention on Human Rights (right to respect for family life), seeking leave to remain.

The appeal process: the adjudicator dismissed the appeal; the Immigration Appeal Tribunal later heard the appeal and dismissed it on the ground that the appellant should return to Zimbabwe to apply for entry clearance; the Court of Appeal dismissed the appellant's further appeal ([2005] EWCA Civ 1779). The appellant then appealed to the House of Lords.

Issues before the House of Lords:

• whether an appellant's in-country statutory appeal under section 65 can properly be dismissed on the basis that the appellant should return abroad to apply for entry clearance, and
• whether, on the facts, requiring the appellant and her child to return to Zimbabwe to apply from abroad would be a proportionate interference with Article 8 family life rights.

The House analysed the statutory framework (section 65 of the 1999 Act and section 6 of the Human Rights Act 1998), the relevant immigration rules (including rules requiring entry clearance and the duty of entry clearance officers to apply human-rights standards), and earlier authorities (including Mahmood, Ekinci, Huang and recent Court of Appeal decisions). The Lords accepted that in some cases it may be lawful and proportionate to require an appellant to apply from abroad, for reasons of immigration control, deterrence and the proper enforcement of entry-clearance procedures. However, the court held that the policy of routinely requiring return to apply from abroad is not compatible with Article 8 in many family cases, particularly where children born and raised in the United Kingdom would suffer significant disruption.

Applying those principles, the House held that on the facts it would be disproportionate to remove the appellant and her United Kingdom-born child to Zimbabwe to apply for entry clearance abroad. The interference with family life was not justified by immigration control considerations. The appeal was allowed and costs awarded to the appellant.

Appeal allowed. The House held that although an appellate authority may in some cases dispose of an in-country section 65 Article 8 appeal by requiring the appellant to apply for entry clearance from abroad, that course should be adopted only rarely in family cases, especially where children born and raised in the United Kingdom are affected. On the facts—genuine marriage to a settled refugee, a United Kingdom-born four-year-old child and likely successful prospects if an application were made from abroad—the removal would be disproportionate and violate Article 8.

Adjudicator dismissed the in-country appeal (14 May 2003). The Immigration Appeal Tribunal dismissed the appeal (after leave was granted following procedural steps in 2004). The Court of Appeal dismissed the appellant's appeal ([2005] EWCA Civ 1779). The appellant appealed to the House of Lords, which allowed the appeal ([2008] UKHL 40).