Artesham Butt v Secretary of State for the Home Department

The reasoning in Chikwamba has narrow modern scope. It is potentially relevant only where leave to remain is refused solely because the applicant must leave the United Kingdom to apply for entry clearance. Even then, a full Article 8 assessment is required, and departure may be proportionate. A tribunal must give weight to the absence of insurmountable obstacles to family life abroad, apply paragraph GEN.3.2 of the Immigration Rules, and respect the little-weight requirement in section 117B(4) of the Nationality, Immigration and Asylum Act 2002.

The appellant, a Pakistani overstayer, sought leave to remain as the spouse of his partner. The First-tier Tribunal allowed his second appeal, finding that temporary separation to obtain entry clearance would be disproportionate, although there were no insurmountable obstacles to family life in Pakistan. The Upper Tribunal held that the First-tier Tribunal had erred in law, set aside its determination and remitted the appeal without preserved findings. The appellant appealed to the Court of Appeal, challenging the application of Chikwamba and Alam, the treatment of delay under Article 8, and the relationship between the insurmountable-obstacles test and proportionality.

1. Disposition. The appeal was dismissed. The Upper Tribunal was right to set aside the First-tier Tribunal’s determination and remit the appeal for fresh consideration.
2. Scope of Chikwamba. Following Alam v Secretary of State for the Home Department ([2023] EWCA Civ 30), the Chikwamba reasoning is potentially relevant only where the Secretary of State expressly refuses leave to remain solely on the narrow procedural ground that the applicant must leave and apply for entry clearance. The practical effect of refusal cannot convert a substantive refusal into such a case. Even where the procedural ground is relied on, the full strength of the Article 8 claim must be assessed.
3. The First-tier Tribunal found no insurmountable obstacles to family life in Pakistan but failed to give that finding weight in the Article 8 balance. It also failed to decide the agreed question under paragraph GEN.3.2 of the Immigration Rules, namely whether exceptional circumstances made refusal unjustifiably harsh.
4. Section 117B(4) of the Nationality, Immigration and Asylum Act 2002 required little weight to be given to the relationship formed while the appellant was unlawfully present. Although Rhuppiah v Secretary of State for the Home Department ([2018] UKSC 58) recognises limited flexibility, a compelling factor must be identified. The short period of non-decision delay in this case did not counter the statutory requirement.
5. The First-tier Tribunal gave decisive weight to the proposed temporary departure even though the refusal was not based solely on a requirement to leave and apply for entry clearance. Its speculation about a hypothetical application was also misplaced: under Part 9 of the Immigration Rules, the application would have been refused because of the appellant’s previous immigration-law breach.

• Court of Appeal (Civil Division): Appeal dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): In determination 3, promulgated on 17 October 2023, the Secretary of State’s appeal was allowed, the First-tier Tribunal’s determination was set aside and the appeal was remitted without preserved findings.
• First-tier Tribunal (Immigration and Asylum Chamber): In determination 2, promulgated on 24 June 2022, the appellant’s appeal against the refusal of spouse leave was allowed.