Zhang, R (on the application of) v Secretary of State for the Home Department

A blanket immigration rule requiring a person to leave the United Kingdom before applying to switch visa category is unlikely to comply with Article 8 where the application’s merits would be assessed in the same way in or out of the country. Temporary separation caused merely by formal entry-clearance procedures will rarely be proportionate. Particular circumstances, such as a poor immigration record or tenuous engagement of Article 8, may justify the requirement. A residual discretion to grant leave outside the rules cannot generally sustain a bright-line rule which predictably produces disproportionate outcomes. The court should not redraft the Immigration Rules, but may refuse to permit their unlawful application in an individual case.

The claimant, a Chinese national living in the United Kingdom as a Tier 2 (General) Migrant, lost her sponsored employment after marrying the interested party. She was offered alternative employment, but the offer required leave independent of sponsorship. Her husband was expected to obtain a Tier 1 (Post-Study Work) visa, allowing her to apply as his Partner.

Rule 319C(h)(i) prevented her from applying in the United Kingdom because she had last held leave as a General migrant. She therefore left for China, obtained entry clearance, and returned after the job offer had been withdrawn. She sought judicial review, alleging disproportionate interference with Article 8 family life. The issues were whether alternative procedures avoided direct scrutiny of the rule and whether the requirement was compatible with the approach in Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 1420.

1. The claimant was not barred from judicial review by failing to rely on rule 2 or to make an application outside the rules. Rule 319C(h)(i) was mandatory and unambiguous, and the Secretary of State consistently maintained that it was Article 8 compliant.
2. The court applied the structured approach in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, as clarified by Huang v Secretary of State for the Home Department [2007] 2 AC 167. Exceptionality was not an additional hurdle.
3. Following Chikwamba, requiring departure merely to comply with formal entry-clearance procedures will rarely be proportionate where the substantive application is unaffected by location. The principle applies generally to family cases, although a poor immigration record or tenuous Article 8 engagement may justify departure.
4. The blanket requirement in rule 319C(h)(i) was unsustainable. The court did not strike down or redraft the rule, but held that it could not lawfully be applied to this claimant.