MA (Pakistan) v Secretary of State for the Home Department

In an Article 8 family-life appeal, requiring a person to leave the United Kingdom merely to apply abroad for entry clearance will only comparatively rarely be proportionate. The decisive question is whether there is a sensible reason for insisting on an overseas application, particularly where that application is likely to succeed.

Where the alternative is that a couple should live together abroad, the tribunal must ask whether it is reasonable to expect the spouse to relocate in all the circumstances. The stricter test of whether there are insurmountable obstacles to relocation is inappropriate.

The applicant appealed from an Asylum and Immigration Tribunal determination, AIT No IA/10123/2008, which dismissed his challenge to the refusal of leave to enter and cancellation of his continuing leave. He accepted that he could not satisfy the Immigration Rules in his existing capacity. His appeal therefore depended on whether removal to Pakistan would interfere disproportionately with the family life he shared with his British wife.

The Immigration Judge found that the applicant could apply from Pakistan under Rule 281 and would probably be able to return. Alternatively, the couple could live and work in Pakistan because there were no insurmountable obstacles. The central issues were whether the judge had properly applied Chikwamba v Secretary of State [2008] UKHL 40 and whether reasonableness, rather than insurmountable obstacles, governed the proposed relocation of the couple.

1. Permission to appeal was granted and the appeal was allowed unanimously. The Immigration Judge had made a clear error of law on both the primary and alternative bases of the determination. The applicant’s appeal was to be reconsidered with the correct principles taken into account.

2. The primary conclusion was that the couple would be separated only while the applicant returned to Pakistan and applied for entry clearance. The Immigration Judge implicitly accepted that an application under Rule 281 of the Immigration Rules would probably succeed. In those circumstances, the proportionality assessment had to take full account of Chikwamba v Secretary of State [2008] UKHL 40. That approach applies to family cases generally, although it may carry particular force where children are involved. The proper question was whether there was any sensible reason to require the applicant to return merely to make the application, rather than whether such return presented an insurmountable obstacle.

3. The Immigration Judge neither expressly nor implicitly considered the Chikwamba approach. The general assertion that the decision was proportionate did not remedy that omission. His treatment of the inconvenience caused by temporary departure was the antithesis of the approach required by the House of Lords.

4. The alternative finding—that the couple could live and work together in Pakistan—was also legally flawed. In accordance with EB (Kosovo) [2008] UKHL 41, the question was whether it was reasonable in all the circumstances to expect the applicant’s wife to move to Pakistan. The insurmountable-obstacles test set the threshold too high.

5. The couple’s evidence about threats from the applicant’s father, their lack of accommodation and close family support in Pakistan, and the wife’s likely loss of employment required consideration under the reasonableness standard. Those matters were not necessarily compelling, but the Immigration Judge had to address them.

1. Court of Appeal (Civil Division): Permission to appeal was granted and the appeal was allowed unanimously. The tribunal’s determination contained errors of law on both stated bases, and the applicant’s appeal was to be reconsidered.

2. Asylum and Immigration Tribunal: Following an earlier order for reconsideration, Immigration Judge Rowlands dismissed the applicant’s appeal on 24 November 2008. The judge concluded that temporary departure to seek entry clearance, or relocation of the couple to Pakistan, would not breach Article 8 of the European Convention on Human Rights.

3. Secretary of State: On 5 June 2008 the applicant was refused leave to enter and his continuing leave was cancelled.