SZ (Zimbabwe) v Secretary of State for the Home Deparment

In an Article 8 removal case based on private life, a tribunal must decide whether removal itself would be disproportionate. A prospect of obtaining student entry clearance after removal does not make removal disproportionate where the Article 8 claim is not otherwise sound. Chickwamba v SSHD concerned an exceptional family-life case involving a young child and a compelling long-term claim to family unity; it could not be treated as analogous merely because the claimant was studying. Relevant private-life factors, including residence, delay, social ties and the claimant’s immigration and study history, must be assessed under the structured approach in Huang v SSHD.

The Secretary of State appealed against an Asylum and Immigration Tribunal decision allowing SZ’s human-rights appeal against refusal of further leave to remain as a student. SZ, a Zimbabwean national, had lived in the United Kingdom for about six years, had studied intermittently, and claimed that removal would interfere with her private life and education. The tribunal accepted that private life was engaged and treated Chickwamba v SSHD as supporting the conclusion that removal would be disproportionate.

The central issues were whether the tribunal had properly assessed the Article 8 private-life claim and whether the possibility of a future student entry-clearance application affected proportionality.

1. Appeal allowed. The tribunal’s order was set aside and the Secretary of State’s order restored.
2. The tribunal had erred in law by treating Chickwamba v SSHD as analogous without addressing the decisive differences. That case involved family life, including a young child, harsh conditions in Zimbabwe, and a compelling basis for the family ultimately to live together in the United Kingdom. The present case concerned private life connected principally with study.
3. The relevant question was whether removal would breach Article 8. If the claim was sound, it should not routinely be defeated by requiring an applicant to leave and seek entry clearance abroad. If it was not sound, the prospect of a later application did not assist the claimant.
4. Applying the approach in Huang v SSHD, the claimant’s six years in the United Kingdom, intermittent studies, absence of established family life here, limited evidence of social ties, delay, and uncertain future immigration position did not establish that removal would breach Article 8. The delay was unfortunate, but there was no significant evidence that it had produced closer personal or social ties or resulted from a dysfunctional system.
5. The tribunal also erred in treating future student entry clearance as a sufficient basis for relief. Whether such clearance would be granted was for the entry-clearance officer, and success was far from certain given the claimant’s study and immigration history. In any event, on these facts disruption to study could not realistically make removal incompatible with Article 8.

• Court of Appeal (Civil Division) — [2009] EWCA Civ 590: appeal allowed; the tribunal’s decision was reversed and the Secretary of State’s order restored.
• Asylum and Immigration Tribunal — the tribunal allowed SZ’s appeal against refusal of further student leave, treating removal as disproportionate under Article 8. The decision is described in the judgment but no separate citation is stated.