Khizar Hayat v The Secretary of State for the Home Department

In an Article 8 family-life appeal, the Chikwamba principle requires a genuine proportionality assessment. Where the sole factor on the State’s side is the legitimate policy of requiring an entry-clearance application from abroad, that objective will usually be outweighed by the factors favouring the appellant.

The principle does not automatically prevail over countervailing matters, such as an adverse immigration history. Nor may it be excluded by a mechanistic rule that there are no children or that the sponsoring partner is not settled in the United Kingdom. Those matters may affect its weight, but their significance depends on the evidence.

The appellant, a Pakistani national, had entered as a student and later held leave as a Tier 1 Post-Study Worker. He married a Pakistani student who had leave to remain in the United Kingdom while completing an ACCA qualification. His application for leave as her partner failed under paragraph 319C of the Immigration Rules.

The First-tier Tribunal dismissed his appeal under the Rules and on human-rights grounds. It held that the couple could live in Pakistan, or that the appellant could return there to seek entry clearance while his wife completed her studies. The appellant appealed to the Upper Tribunal, contending that the First-tier Tribunal had misunderstood Chikwamba v SSHD [2008] UKHL 40 and had not properly assessed proportionality under Article 8.

1. Appeal allowed on human-rights grounds. The First-tier Tribunal’s determination contained an error of law. It was set aside and the Upper Tribunal re-made the decision by allowing the appeal under Article 8.

2. The appellant could not meet paragraph 319C of the Immigration Rules. The respondent was nevertheless entitled to rely on Rules limiting a change of immigration category and, in consequence, on the legitimate objective of requiring an unsuccessful applicant to leave and apply from abroad.

3. That objective did not decide the Article 8 balance. The Tribunal applied Chikwamba v SSHD [2008] UKHL 40: where the requirement to apply from abroad is the only matter on the respondent’s side, it will usually be outweighed by the appellant’s countervailing circumstances.

4. The First-tier Tribunal had wrongly treated the absence of children and the fact that the appellant was not seeking to remain with a settled spouse as reasons to disapply that principle. Those facts may reduce its force, but cannot switch it off. The required assessment remains fact-sensitive.

5. On the accepted evidence, the appellant provided his wife with substantial practical and emotional support. She had no family in the United Kingdom, had leave to remain until 2014 to complete her qualification, and might be unable to continue her studies if separated from him for the substantial period likely to be required for an entry-clearance application. Neither spouse had breached the Rules. Those factors outweighed the sole public-policy factor advanced by the respondent.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal on human-rights grounds, set aside the First-tier Tribunal’s decision, and re-made the decision under Article 8.

• First-tier Tribunal: dismissed the appeal under the Immigration Rules and on human-rights grounds.