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

The Court of Appeal dismissed both appeals from determinations of the Upper Tribunal and First-tier Tribunal. The central legal issues concerned the relevance and scope of Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 to article 8 claims by migrants who have been unlawfully present in the United Kingdom, the effect of Part 5A of the Nationality, Immigration and Asylum Act 2002 (in particular sections 117A and 117B) and the proper application of the Immigration Rules (Appendix FM and paragraph EX.1) regarding "insurmountable obstacles" to family life abroad.

The court held that Chikwamba is of narrow continuing relevance: it is primarily engaged where the refusal under challenge is made on the procedural ground that the applicant should leave the United Kingdom and apply for entry clearance from abroad. Even then, a full merits-based article 8 analysis is required and other factors (including those in section 117B and the Rules) must be weighed. Where refusal is not on that procedural ground, Chikwamba does not displace the requirement to engage fully with all features of the article 8 claim. Applying those principles, the tribunals here were entitled to find that each appellant's article 8 claim was weak in the round (insurmountable-obstacles test not met, precarious/unlawful presence, and strong public interest in immigration control) and that removal would be proportionate.

This appeal concerned two Bangladesh nationals (A1 and A2) who had overstayed immigration permissions and later relied on relationships with British citizens or settled partners to resist removal under article 8 ECHR. Each appellants' claims had been dismissed by the First-tier Tribunal and the Upper Tribunal. Permission to appeal to the Court of Appeal was granted.

The court was invited to determine the continuing legal effect of the House of Lords decision in Chikwamba, particularly whether Chikwamba requires tribunals to allow appeals where an appellant would be very likely to obtain entry clearance if required to apply from abroad. Relevant statutory law included Part 5A of the Nationality, Immigration and Asylum Act 2002 (sections 117A–117D), and the Immigration Rules (Appendix FM, paragraph EX.1 concerning "insurmountable obstacles"). The appeals raised: (i) whether Chikwamba has a broad application to in-country article 8 claims by overstayers, and (ii) in A1's case, whether the First-tier Tribunal erred in finding there were no insurmountable obstacles to family life abroad.

The Court of Appeal reviewed authority including Chikwamba, Hayat, VW (Uganda), the Supreme Court decisions in Hesham Ali, Agyarko and Rhuppiah, and a range of Upper Tribunal and First-tier Tribunal authorities. The court set out three general principles: Chikwamba is principally relevant where refusal rests on the narrow procedural stance that the applicant must apply for entry clearance from abroad; even then a full article 8 merits analysis is required and relevant public interest factors (including section 117B considerations and the Rules) must be weighed; and if the refusal is not on that narrow procedural ground a full analysis is always required. Applying those principles, the court concluded neither tribunal erred in law in their treatment of Chikwamba and that the tribunals were entitled to conclude the appellants' article 8 claims were outweighed by the public interest in effective immigration control. The appeals were dismissed.

The Court of Appeal dismissed both appeals. The court held that Chikwamba is of limited and principally procedural relevance (where refusal is because the applicant should leave and apply for entry clearance abroad); even in such cases a full article 8 merits assessment is required and other statutory and Rule-based factors (notably Part 5A, section 117B and Appendix FM/EX.1) must be weighed. Where refusal is not on that narrow procedural ground Chikwamba does not displace the requirement to engage fully with all features of the article 8 claim. On the facts the tribunals were entitled to find no insurmountable obstacles and that the public interest in immigration control made removal proportionate.

Appeals to the Court of Appeal from determinations of the Upper Tribunal (Immigration and Asylum) which had dismissed appeals from the First-tier Tribunal. Permission to appeal to this court was granted by Coulson LJ (for A1) and Newey LJ (for A2). Relevant Upper Tribunal references include HU/10354/2019 and PA/06610/2019. The Court of Appeal delivered judgment on 19 January 2023 ([2023] EWCA Civ 30).