Hayat and Chickwamba

In an earlier blog Henry Oliver reviewed the case of Hayat, in which the Upper Tribunal clarified their position on the landmark case of Chickwamba. In this piece Gemma Hyslop examines the effects of this in more detail.

Hayat and Chickwamba – the issues

Both cases centre on the courts’ interpretation of Article 8 of the European Convention on Human Rights, and provide a useful reference for those with applications or appeals that hinge on this particular point of law.

Chikwamba has long proved valuable for those immigrants who the UK Border Agency insists their application should be made from their country of origin, not within the UK. This is done to maintain a system of managed migration.

Chikwamba argues that where this is the sole justification for refusing the application, the applicant’s family life in the UK may well serve to override the UK Border Agency’s legitimate objective.

However, the UK Border Agency has in the past attempted to limit the remit of Chikwamba solely to matters which are directly analogous to the facts of that case.

This has marginalised the potential benefit of this significant judgement, and frustrated many an application in which the Chikwamba principle was clearly relevant.

But Hayat may well change all that, as the court has confirmed their belief that the Chikwamba principle should be extended well beyond cases of young mothers and settled partners.

The Differences

The case of Hayat is distinguishable from Chikwamba in ways:

1. Hayat was a Points Based System application;
2. There were no children;
3. The applicant’s partner was not settled in the UK.

1. Points Based System

The first point is significant because, since the introduction of the Points Based System, the UK Border Agency has tried repeatedly to limit the basis of their decisions to evidence that relates solely to the relevant attributes under the Points Based System.

The logic behind this is to streamline the decision-making process. There are those who would beg to differ with this reasoning, arguing that such a didactic approach renders the consideration of such applications a mere box-ticking exercise rather than a considered review.

Although other judgements have already railed against this black-and-white approach, the fact that the courts have confirmed Chikwamba’s relevance in such matters will hopefully go some way to improving the decisions not only at appeal but also during the initial decision-making.

2. Children

The second distinguishing point is in reference to children. In Chikwamba, the appellant was a mother with a young daughter whose care also had to be borne in mind when deciding the case.

Such a departure from this factual element is significant because it renders the decision of Chikwamba pertinent to those without children, something which the UK Border Agency has been loath to acknowledge.

In allowing this factual divergence, the remit of the Chikwamba principle is widened to many more applicants.

3. Status of Partner

The last point regarding the status of the partner is, to my mind, the most exciting point of this decision.

In Chikwamba the husband of the appellant had been granted refugee status in the UK, which meant that he had settlement. This was before the more recent practice of a provision of limited leave to those recognised as refugees before re-evaluating whether they are still at risk in their country of origin prior to the grant of settlement … the less said about that the better.

In contrast, the appellant’s partner in Hayat had a Tier 4 student visa. She had an excellent immigration history and almost three years’ leave left in the UK. But she was not technically settled here, nor was such status her intention – the appellant made it plain at the first hearing that once his wife had finished her course they would return to Pakistan as he had a house there which they intended to make their home.

The court found that if the appellant were to leave the UK his student partner would be so adversely affected by his absence that she would be unable to continue her studies – the very reason for which she was admitted to the UK.

The court pointed to the fact that the UK Border Agency had allowed the partner permission to enter the UK to study – in refusing the appellant permission to remain with her they were obliging her to leave the UK and not complete the course of study that they had approved.

For the Upper Tribunal to have allowed the appeal on Article 8 grounds nonetheless is a very interesting development. It confirms that where the UK Border Agency’s argument rests only on the public policy of requiring a person to apply under the rules from abroad, that will usually be outweighed by positive personal factors on the part of the applicant.

And it extends this to those in the UK without permanent status.

Family Life implications

The court makes it plain that it is wrong to say that the principle applied only to spouse cases, or those in which children were present.

Do bear in mind though, that the level of interdependency between the applicant and partner was extremely high, to the extent that they ‘would find it unthinkable to live apart’.

In Chikwamba, the appeal was allowed because making the appellant to return would have led to the family life being “gravely interrupted”, so it is clear that the courts still require evidence of a highly developed family life, and one that would be severally affected by the potential separation.

As such, this case will by no means paper over the cracks of a poor immigration history, or rescue an application in which the family life is perhaps tenuous; but it does provide an interesting development in terms of cases where the applicant is part of an established network of support in the UK.

The effects of Hayat

On a practical note, it can sometimes be preferable for migrants to return to their country of origin and make an application for entry clearance – the visa fee may be cheaper than an in-country application, and at many posts a decision may be reached more quickly than from within the UK.

Further, if you intend to apply as a spouse, entry clearance would be a quicker route to settlement and British citizenship.

However, there is also a raft of negatives. Although the decision-making time may be quicker, the standard of the decisions may fall short.

Some entry clearance posts operate to a very high standard and produce prompt and accurate decisions. However, as Damien Green himself admitted recently, there are some where the quality of decision-making falls woefully short of what applicants should expect, and it is very much worth investigating which of these two standards an applicant can expect to receive.

In addition, if the applicant has over stayed in the UK in the past they may face a time ban against returning to the UK. In some cases, the automatic ban may not in fact be applicable due to specific dispensations set out in the Immigration Rules.

Unfortunately there are entry clearance posts where these exceptions to the bans are routinely forgotten or misapplied, meaning that applicants face a lengthy appeal process that in terms of entry clearance can take up to eight months to be completely resolved.

Applicants who have been in the UK for some time and are considering an application for settlement in the future based on this continuous long residence, should bear in mind that any return home may break the continuous nature of such residence.