Uzma Younas v The Secretary of State for the Home Department

An Article 8 appellant who says that removal is unnecessary because entry clearance will later be granted must still address the statutory public-interest considerations in Part 5A of the Nationality, Immigration and Asylum Act 2002. Chikwamba v SSHD does not create a general rule that temporary removal is disproportionate whenever a future entry-clearance application will succeed.

The tribunal must assess the particular immigration history, the likely period abroad and the practical disruption to family life. Under section 117B(6)(b), the child is assumed to leave the United Kingdom, but the reasonableness assessment must then be conducted in the child’s real-world circumstances, including the expected duration abroad. The same practical, fact-sensitive approach governs whether temporary departure deprives a child of genuine enjoyment of Article 20 TFEU rights.

Uzma Younas, a Pakistani citizen who had lived mainly in the United Arab Emirates, entered the United Kingdom as a visitor while pregnant. She later sought leave to remain on the basis of her relationship with her British partner and their British-citizen daughter.

The Secretary of State refused the application. The First-tier Tribunal’s decision was set aside by the Upper Tribunal on 25 November 2019, and this tribunal re-made the decision. The respondent accepted that permanent family separation and family life continuing indefinitely abroad would be disproportionate, but contended that the appellant could return to Pakistan temporarily to obtain entry clearance.

The central issues were whether temporary removal was proportionate under Article 8, whether section 117B(6) prevented removal, and whether the appellant had a derivative right of residence under Article 20 TFEU.

1. Appeal dismissed. The tribunal found that the appellant could obtain entry clearance from Pakistan and return within four to nine months. Her removal would therefore not produce the indefinite or lengthy separation contemplated by the respondent’s concession.
2. The appellant could not meet Appendix FM. Although there were insurmountable obstacles to the family living permanently outside the United Kingdom, EX.1 was not freestanding. As a visitor whose leave continued under section 3C, she failed the immigration-status requirement in E-LTRP.2.1. She also failed to show very significant obstacles to integration for the purposes of paragraph 276ADE(1)(vi).
3. Chikwamba v SSHD did not eliminate the public interest in effective immigration control where an appellant would later obtain entry clearance. The correct approach was to decide whether Article 8(1) was engaged; whether entry clearance would be granted; whether removal nevertheless served a public interest; and whether removal was proportionate under Article 8(2), applying Part 5A of the Nationality, Immigration and Asylum Act 2002. On the findings, the appellant had entered as a visitor intending to remain permanently. That history gave substantial weight to the public interest in requiring a proper entry-clearance application.
4. Section 117B(6) was self-contained, but section 117B(6)(b) was not satisfied. The tribunal had to assume that the British child would leave with her mother, then assess the real circumstances of a temporary absence. The child would be with her primary carer, was healthy, had not started school and would be abroad only temporarily. Separation from her father and step-siblings was not unreasonable in those circumstances.
5. Applying Ruiz Zambrano v Office national de l’emploi and Patel v Secretary of State for the Home Department, the child would in fact be compelled to leave the Union with her primary carer. But the Article 20 assessment was practical rather than theoretical. A temporary absence of up to nine months would cause only theoretical loss of Union-citizenship enjoyment for this nursery-age child, so no derivative right of residence arose.

• Upper Tribunal (Immigration and Asylum Chamber): Re-made the appeal after setting aside the First-tier Tribunal decision promulgated on 14 May 2019. The setting-aside decision was promulgated on 25 November 2019.
• First-tier Tribunal: Decision promulgated on 14 May 2019; its outcome and reasoning are not otherwise stated in the judgment.