Gurpreet Kaur Thakral, R (on the application of) v The Secretary of State for the Home Department

The Chikwamba principle is engaged only where an Article 8 claim has been refused on the procedural basis that the applicant must apply for entry clearance from the home state. It does not require the Secretary of State to consider a hypothetical out-of-country application where she has considered the in-country application substantively under the Immigration Rules and Article 8.

On judicial review, the legality of an immigration decision is assessed by reference to the law in force when it was made. In an Article 8 proportionality assessment, the decision-maker may give weight to the absence of evidence supporting asserted caring obligations and to the public interest in immigration control.

The applicant, an Indian national, sought judicial review of the Secretary of State’s refusal of her application for leave to remain as the spouse of a British citizen. She accepted that she could not meet the relevant requirements of Appendix FM because she had overstayed and could not establish insurmountable obstacles to family life in India.

She contended that the refusal was contrary to Article 8 of the European Convention on Human Rights. Her principal arguments were that the Secretary of State should have applied Chikwamba v SSHD [2008] UKHL 40, and that the proportionality assessment failed to address her mother-in-law’s needs and the stigma facing divorced women in India.

The central issue was whether the refusal was procedurally within the Chikwamba principle and, if not, whether it nevertheless involved an unlawful or disproportionate interference with family life.

1. The judicial-review application was dismissed. The Secretary of State had considered the application substantively under both the Immigration Rules and Article 8. It was not refused because the applicant was required, as a procedural matter, to leave the United Kingdom and apply from India.

2. The Tribunal applied SSHD v Hayat (Pakistan) [2012] EWCA Civ 1054. The Chikwamba principle is engaged only where the claim has been dismissed on the procedural ground that the applicant should have applied from the home state. It did not apply merely because an applicant might have been able to meet different entry-clearance requirements had she applied from abroad.

3. The Secretary of State was not required to decide the unrequested hypothetical question whether the applicant would have obtained entry clearance from India. A request that the decision-maker undertake that exercise would be a necessary condition for any such duty. The Tribunal did not decide whether a request would itself create that duty.

4. The legality of the decision fell to be assessed by the law applicable on 9 December 2013. Part 5A of the Nationality, Immigration and Asylum Act 2002, inserted later by the Immigration Act 2014, was therefore irrelevant.

5. The Article 8 assessment disclosed no error of law. The Secretary of State was entitled to note the absence of evidence that the applicant’s mother-in-law required the full-time presence of the applicant and her husband. She had also addressed the asserted stigma in India and was entitled to conclude that it did not outweigh the applicant’s overstaying and the public interest in enforcing immigration law. Refusal was proportionate.

• Upper Tribunal (Immigration and Asylum Chamber): Permission to apply for judicial review was granted on 4 June 2014. The Tribunal dismissed the challenge to the Secretary of State’s refusal of leave to remain.
• Earlier immigration proceedings: An appeal concerning an earlier Article 8 application was dismissed by the First-tier Tribunal on 24 April 2012, and a subsequent appeal to the Upper Tribunal was dismissed on 23 August 2012.