Shah Md Jahangir Alam & Anor v Secretary of State for the Home Department

Chikwamba is potentially relevant only where leave to remain has been refused on the narrow procedural basis that the applicant must leave the United Kingdom and apply for entry clearance abroad. Even then, the decision-maker must conduct a full Article 8 proportionality assessment. Factors adverse to the claim may make temporary departure proportionate.

Where refusal rests on the substantive weakness of the Article 8 claim, a full assessment of all circumstances is always required. Under Nationality, Immigration and Asylum Act 2002, little weight must be given to a relationship formed during unlawful residence. The absence of insurmountable obstacles to family life abroad is a powerful factor supporting removal.

The appellants were Bangladeshi nationals who had remained in the United Kingdom unlawfully after their leave expired. Each relied on family life with a British-citizen wife or partner, formed or continued when the appellant was unlawfully present.

The First-tier Tribunal dismissed both human-rights appeals. In A1’s case, the Upper Tribunal found no error of law. In A2’s case, it set aside the First-tier Tribunal’s decision for error of law, re-made the decision, and again dismissed the appeal.

Before the Court of Appeal, both appellants argued that Chikwamba meant that removal was disproportionate because an entry-clearance application would succeed. A1 also challenged the finding that there were no insurmountable obstacles to family life in Bangladesh.

1. Appeals dismissed. Lady Justice Elisabeth Laing held, with whom Lord Justice Snowden and Lord Justice Peter Jackson agreed, that neither tribunal erred in law.
2. [2008] UKHL 40 did not establish a general rule that an unlawful resident must be allowed to remain whenever an application for entry clearance might succeed. It decided that, on its unusually strong facts, insistence on an inflexible policy requiring an application from Zimbabwe was disproportionate. Its relevance is confined to a refusal based on the narrow procedural requirement to leave and apply from abroad.
3. Even where that procedural issue arises, the tribunal must assess the Article 8 claim in full. Adverse features may justify requiring departure and an entry-clearance application. If the refusal is instead based on the substantive merits of the Article 8 claim, all features of the claim must always be assessed. The approach in Hayat was correct.
4. Neither appellant could succeed under the Rules. Their relationships had been formed while they were unlawfully present, so the tribunal had to give them little weight under Nationality, Immigration and Asylum Act 2002, section 117B(4)(b). The absence of insurmountable obstacles to family life in Bangladesh was a further powerful factor. Those matters entitled the tribunals to find that effective immigration control outweighed the weak Article 8 claims.
5. The First-tier Tribunal’s isolated reference to life abroad not being “unduly harsh” for A1’s wife was not a material legal error. Read as a whole, its reasoning repeatedly applied the correct insurmountable-obstacles test. It was also entitled to assess the evidence concerning her vulnerability and the circumstances in which the relationship had formed.

• Court of Appeal (Civil Division)—dismissed both appeals: [2023] EWCA Civ 30 .
• Upper Tribunal (Immigration and Asylum Chamber)—in A1’s case, upheld the First-tier Tribunal’s dismissal; in A2’s case, found an error of law, set aside the decision, re-made it, and dismissed the appeal.
• First-tier Tribunal—dismissed each appellant’s human-rights appeal from the Secretary of State’s refusal of leave to remain.