Tikka v The Secretary of State for the Home Department

Where a person has genuine family life in the United Kingdom and their partner cannot reasonably relocate, removal interferes with European Convention on Human Rights article 8 and must be justified by a specific public-interest aim. If the same suitability criteria and substantially the same material govern any re-entry application, the resulting separation may be effectively permanent. It should not be treated as temporary or left to speculation. The public interest in preventing queue-jumping has little application where the person entered lawfully with entry clearance and has held leave. A single conviction, without evidence of likely reoffending, does not by itself justify removal. A material error in this assessment requires the decision to be quashed and remitted.

The appellant, a Pakistani national, entered the United Kingdom with entry clearance and held continuing leave. After marrying a British citizen, he was granted leave to remain, but the Secretary of State curtailed it under the Immigration Rules following his conviction for causing death by driving whilst uninsured.

The First-tier Tribunal dismissed his challenge under the Rules but allowed his free-standing article 8 claim. The Upper Tribunal set aside that decision and remade it, dismissing the appeal. It treated any separation following removal as temporary because the appellant could apply for re-entry. The appeal to the Court of Appeal concerned whether that approach involved a material error, particularly where the re-entry suitability criteria were materially identical to those used for curtailment.

Appeal allowed. The decision of Deputy Upper Tribunal Judge Birrell was quashed and the matter was remitted to the Upper Tribunal (Immigration and Asylum Chamber) for redetermination by a differently constituted tribunal.

1. The parties accepted, and the court held, that the suitability criteria governing re-entry were materially identical to those governing the curtailment of leave. The Deputy Judge had therefore erred in treating the criteria as different and in treating the prospective separation as temporary.
2. Proceeding on the established facts that the marriage was genuine and that it would be unreasonable for the wife to relocate to Pakistan, removal would interfere with the appellant’s and his wife’s article 8 rights. That interference would be disproportionate unless justified by the legitimate aims of the public interest, irrespective of the merits of a future re-entry application.
3. The public interest in requiring entry clearance before arrival, including preventing queue-jumping, did not sensibly apply because the appellant had entered lawfully with entry clearance and had held leave throughout. Prevention of crime and disorder was also not established: he had one conviction and there was no evidence that he was likely to offend again. The conviction alone did not provide such evidence.
4. On the evidence, and assuming consistent decision-making on the same material under the same criteria, a re-entry application would be refused. The resulting separation would therefore be permanent subject to appeal. The underlying article 8 issue should not be left to a futile repetition of the same process. This approach was consistent with [2008] UKHL 40, [2009] EWCA Civ 953 and [2012] EWCA Civ 1054.
5. The specialist-tribunal deference principle referred to in [2002] EWCA Civ 796 could not assist where the tribunal had proceeded on a fundamentally flawed legal basis.

1. Court of Appeal (Civil Division) allowed the appeal, set aside the Upper Tribunal’s decision and remitted the matter for redetermination by a differently constituted tribunal: [2018] EWCA Civ 642.
2. Upper Tribunal (Immigration and Asylum Chamber), Deputy Upper Tribunal Judge Birrell, set aside the First-tier Tribunal’s decision for material error of law and remade the decision, dismissing the appeal on all grounds on 3 March 2016.
3. First-tier Tribunal (Immigration and Asylum Chamber), Judge Law, dismissed the challenge under the Immigration Rules but allowed the appeal on the free-standing article 8 ground on 3 March 2015.