Hiahong Chen v Th Secretary of State for the Home Department

Appendix FM does not determine whether a temporary return abroad to seek entry clearance would disproportionately interfere with Article 8 family life. That question must be considered outside the Immigration Rules where it genuinely arises.

The claimant bears the burden of producing evidence that temporary separation would be disproportionate. Reliance on Chikwamba v Secretary of State for the Home Department alone is insufficient. The use of “exceptional circumstances” does not itself impose an unlawful exceptionality test; the reasoning must show that proportionality was replaced by such a test.

A failure to consider an Article 8 claim outside the Rules makes a decision unlawful only if it has caused, or arguably caused, a substantive breach of Article 8.

The applicant, a Chinese national who had overstayed her student leave, sought leave to remain outside the Immigration Rules on the basis of her marriage to a British citizen. The Secretary of State’s first refusal did not address whether she could return temporarily to China to seek entry clearance. After permission for judicial review was granted, the Secretary of State issued a supplementary refusal which considered that issue under Chikwamba v Secretary of State for the Home Department [2008] UKHL 40.

The applicant challenged the supplementary decision, contending that it unlawfully applied an exceptionality threshold. She did not challenge the finding that she could not meet paragraph 276ADE or paragraph EX.1 of Appendix FM. The central issue was whether the Secretary of State lawfully assessed the proportionality of requiring a temporary return to China for entry clearance.

1. Claim dismissed. Both the original refusal and the supplementary refusal were lawful. The applicant had provided no evidence that a temporary return to China for an entry-clearance application would disrupt family life, still less that any disruption would be disproportionate.

2. Paragraph EX.1 of Appendix FM concerns whether there are insurmountable obstacles to family life continuing outside the United Kingdom. It does not address the distinct Chikwamba question: whether temporary separation to make an entry-clearance application would disproportionately interfere with Article 8. A case may therefore fall outside the Rules even though there are no insurmountable obstacles to family life abroad.

3. The claimant must place evidence of the prospective length and degree of disruption, and of other relevant circumstances, before the Secretary of State. The position may more readily favour a claimant where children would be separated from a parent, but there is no presumption that requiring entry clearance is rarely proportionate. Lord Brown’s reference in Chikwamba to cases involving children did not establish a legal test.

4. The Secretary of State’s use of “exceptional circumstances” did not show an unlawful exceptionality test. The decision letter expressly addressed proportionality and weighed the relevant circumstances against immigration control. Such language is permissible where it describes circumstances in which refusal would have unjustifiably harsh and disproportionate consequences; an applicant must identify defective reasoning showing that proportionality was displaced.

5. On the facts, the applicant had no children, had supplied no evidence of hardship or disruption, retained family in China, and had established the relationship after her leave had expired. The Secretary of State was entitled to conclude that there was only one proportionate outcome.

6. The Secretary of State was not obliged, when deciding an application for leave to remain, to decide whether a future entry-clearance application would succeed. Further, even if the first decision failed to consider Article 8 outside the Rules, that procedural omission could not invalidate it without a substantive Article 8 breach. None was shown.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review challenge to refusals dated 25 October 2013 and 21 November 2014 dismissed.
• Secretary of State: Refused leave to remain under the Immigration Rules and outside them on Article 8 grounds.