Hiahong Chen v Th Secretary of State for the Home Department

The applicant is a 29-year-old national of the People’s Republic of China (China). She has been granted permission to challenge a decision of the respondent of 25 October 2013 (hereafter the “first decision” or the “first decision letter”) refusing her application of 17 September 2013 for leave to remain on the basis of Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) outside the provisions of the Statement of Changes in the Immigration Rules HC 395 (as amended) (the “IRs”). The applicant's Article 8 claim was based on her marriage to a Raymond Hoi Wing Cheung, a British citizen born in the United Kingdom.

The first decision considered whether there would be insurmountable obstacles to the applicant and Mr Cheung enjoying family life in China but did not consider the possibility of the applicant applying for entry clearance in China.

Following the grant of permission, the respondent made a supplementary decision on 21 November 2014 (hereafter the “second decision” or the “second decision letter”). This decision elaborated upon the reasons why there were no insurmountable obstacles to family life being enjoyed in China. It then went on to consider the possibility of the applicant making an application for entry clearance in China in order to join Mr Cheung as his spouse.

At the hearing, I granted Mr Palmer’s application for permission to amend the applicant’s grounds in order to include a challenge to the second decision. I also granted permission to apply for judicial review of the second decision. As a consequence, the issue before me is whether the respondent (in the second decision) unlawfully used an “exceptionality test” or a threshold of exceptionality in applying Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 when she considered the possibility of the applicant applying for entry clearance in China.

The applicant entered the United Kingdom as a student on 30 March 2007. Her leave as a student expired on 30 November 2009 from which time she has remained in the United Kingdom without leave. In November 2008, she met Mr Cheung, who was born in the United Kingdom on 30 September 1984 of parents who were born in Hong Kong. Their relationship began on 18 July 2010. They began living together on 1 January 2012 and were married on 1 October 2012.

In the first decision letter, the respondent noted (in the context of the assessment of the applicant’s case under para 276ADE of the IRs) that the applicant had parents and siblings who reside in China. This was based on the information provided by the applicant in her application for leave, at A138.

On 30 October 2014, the applicant was granted permission to apply for judicial review. In giving his reasons, the Upper Tribunal Judge stated that he had regard to the concession of Mr. Mandalia representing the Secretary of State in R (Iqbal) v Secretary of State for the Home Department [2014] EWHC 1822 (Admin) expressed as follows:

In the light of this concession, the judge considered it arguable that “ the [first decision letter was] unlawful because the respondent failed to give any consideration (or if she did this is not adequately reasoned) to whether or not the applicant should be permitted to remain outside the rules on the basis of the principles considered by the House of Lords in Chikwamba and subsequently by the Court of Appeal in [ Secretary of State for the Home Department v Treebhowan; Hayat v Secretary of State for the Home Department [2012] EWCA Civ 1054]”.

After permission had been granted, the respondent made the second decision on 21 November 2014, as stated above. The respondent concluded that the applicant had not demonstrated that there were insurmountable obstacles to family life being enjoyed in China and that she therefore did not satisfy paragraph EX.1(b) of Appendix FM. She also considered the applicant's case in the light of Chikwamba outside the IRs. The relevant paragraphs read:

There is no information to show that your client and her husband cannot return to China lawfully and live there. A mere wish/preference to live in UK would not amount to an insurmountable obstacle.

It is considered that your client and her husband were fully aware of her immigration status since your client was lawfully in the UK on a temporary basis as a student when they met and then remained here unlawfully since 30 November 2009. It is considered that both your client and her husband would have been aware that she may not be able to continue to live here.

While there may be a cultural barrier for your client’s husband to live in China and that some adjustment may be needed, this is not sufficient to amount to an insurmountable obstacle. Just as your client faced a change of culture to live in UK, it is not unreasonable to expect her husband to face a change of culture to live in China in order to continue their life together.

It is submitted that your client’s husband can speak Mandarin. Nonetheless, a lack of knowledge of a language spoken in the country in which the couple would be required to live would not usually amount to an insurmountable obstacle. It is reasonable to conclude that the couple must have been conversing in a commonly understood language whilst in the UK. Therefore, it is reasonable for that to continue outside the UK, whether or not the partner seeks to learn the language spoken in the country of proposed return.

Even if your client and her husband have adapted to life in the UK, it would not be unreasonable to expect them to return to China and adapt to life there. Although they are receiving accommodation rent free here, because they live with her in-laws, it is considered that your client and her husband could find work in China. Although relocating to China together may cause a significant degree of hardship or inconvenience for your client and her husband, it does not amount to an insurmountable obstacle.

I should first make clear what is not challenged and the grounds upon which permission was refused.

The applicant has not challenged the respondent’s conclusion in the first decision letter that she does not satisfy the requirements of para 276ADE. In relation to para 276ADE(vi), the respondent considered that the applicant had not shown that she had no social or cultural ties in her home country.

In the first decision letter, the decision maker considered the provisions of Ex.1 to Appendix FM. Ex.1 provides as follows:

In the first decision, the respondent considered that Ex.1 did not apply because the applicant had not provided any evidence of a genuine and subsisting relationship with a child and she had not provided any evidence that there were insurmountable obstacles to her family life with Mr Cheung continuing in China.

Although the respondent’s conclusion that Ex.1 did not apply was challenged in the grounds, permission was refused on this ground.

Para 7 of Mr Palmer’s skeleton argument reads:

However, at the hearing, Mr Palmer informed me that it was only accepted that the applicant had not placed before the respondent any evidence to show that it would be disproportionate to expect her to return to China. At the same time, he also informed me that he was not able to put forward any exceptional circumstances because he had not been told of any, nor had the respondent before the decisions were made. This alone may suggest that this claim should never have been pursued.

Statement of Changes in Immigration Rules HC 194 introduced requirements, with effect from 9 July 2012, set out in paras 398, 399 and 399A in criminal deportation cases and paras 276ADE and Appendix FM in other cases, that are to be satisfied for leave to be granted on the basis of Article 8 under the IRs. In R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin), Sales J (as he then was) said (at para 29) that:

This two-stage approach was further explained by the Upper Tribunal (comprising Cranston J and Upper Tribunal Judge Taylor) in Gulshan (Article 8 – new Rules – correct approach) [2013] UKUT 00640 (IAC). It was approved by the Court of Appeal in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, although the Court of Appeal held in MF (Nigeria) that the two-stage approach was not applicable in deportation cases because the provisions of the Rules that are applicable in deportation cases are a “complete code”.

In relation to non-deportation cases, the two-stage approach has been endorsed more recently by the Court of Appeal in Singh and Khalid v Secretary of State for the Home Department [2015] EWCA Civ 74 (at para 64).

It is now generally accepted that the new IRs do not provide in advance for every nuance in the application of Article 8 in individual cases. At para 30 of Nagre , Sales J said:

This was also endorsed by the Court of Appeal in Singh and Khalid where Underhill LJ said (at para 64):

Given that the IRs do not provide for every nuance in the application of Article 8 in individual cases, it is not surprising that it was accepted by Mr. V Mandalia for the respondent in R (Iqbal) that para EX.1.1(b) to Appendix FM of the IRs did not include any consideration of “the Chikwamba point” (at para 34). Mr Palmer and Ms Thelen were therefore agreed that in any case where the question arises as to whether it is disproportionate to expect an individual to return to his or her home country to make an application for entry clearance, this falls for consideration outside the IRs.

The judgment of Mr. Ian Dove QC sitting as Deputy High Court Judge (as he then was) in R (Iqbal) states (at para 37) as follows:

This raises two questions, neither of which are material in the instant case because the instant claim falls to be dismissed for the reasons given at para 26 onwards below. However, as they have been raised at the hearing before me, I shall deal with the issues, which are as follows:

I turn to the other issues raised at the hearing.

Firstly, Mr Palmer submitted that the respondent had analysed the judgment in Iqbal and that of Jay J in R (Mohammed) v Secretary of State for the Home Department [2014] EWHC 4392 (Admin) (at para 13) to reach the conclusion that only exceptional cases can succeed under the Chikwamba principle. He submitted that this conclusion was erroneous because para 13 of Mohammed was based upon a misunderstanding of para 30(e) of the judgment of the Court of Appeal in Hayat.

In Hayat , Elias LJ considered Chikwamba and three subsequent Court of Appeal judgments (Footnote: ¹) and summarised the relevant principles that emerged from these judgments at para 30 as follows:

a) Where an applicant who does not have lawful entry clearance pursues an Article 8 claim, a dismissal of the claim on the procedural ground that the policy requires that the applicant should have made the application from his home state may (but not necessarily will) constitute a disruption of family or private life sufficient to engage Article 8 , particularly where children are adversely affected.

b) Where Article 8 is engaged, it will be a disproportionate interference with family or private life to enforce such a policy unless, to use the language of Sullivan LJ, there is a sensible reason for doing so.

c) Whether it is sensible to enforce that policy will necessarily be fact sensitive; Lord Brown identified certain potentially relevant factors in Chikwamba. They will include the prospective length and degree of disruption of family life and whether other members of the family are settled in the UK.

d) Where Article 8 is engaged and there is no sensible reason for enforcing the policy, the decision maker should determine the Article 8 claim on its substantive merits, having regard to all material factors, notwithstanding that the applicant has no lawful entry clearance.

e) It will be a very rare case where it is appropriate for the Court of Appeal, having concluded that a lower tribunal has disproportionately interfered with Article 8 rights in enforcing the policy, to make the substantive Article 8 decision for itself. Chikwamba was such an exceptional case. Logically the court would have to be satisfied that there is only one proper answer to the Article 8 question before substituting its own finding on this factual question.

f) Nothing in Chikwamba was intended to alter the way the courts should approach substantive Article 8 issues as laid down in such well known cases as Razgar and Huang.

g) Although the cases do not say this in terms, in my judgment if the Secretary of State has no sensible reason for requiring the application to be made from the home state, the fact that he has failed to do so should not thereafter carry any weight in the substantive Article 8 balancing exercise.”

Mr Palmer submitted that at para 30.e), Elias LJ was not referring to Chikwamba being an exceptional case on its facts but to the fact that the House of Lords had taken the exceptional course in Chikwamba of reaching its own view of the substantive Article 8 decision (as opposed to remitting the case to the Tribunal to make a fresh decision). He submitted that para 30.e) had therefore been misinterpreted in Mohammed , where at para 13, Jay J said:

Ms Thelen accepted that the Court of Appeal did not suggest at para 30.e) of Hayat that Chikwamba was an exceptional case on its facts as to the Article 8 analysis, as opposed to it being an example of one of those very rare cases in which it will be appropriate for the Court of Appeal to make the substantive Article 8 decision for itself instead of remitting the case to the Tribunal. I do not think that Jay J was saying at para 13 that Chikwamba was an exceptional case on its facts. Mr Palmer’s submission appears to misconstrue the second and third sentences of para 13 of Mohammed and fails to consider the paragraph as a whole.

Secondly, Mr Palmer submitted that the respondent had applied an exceptionality test in considering whether the applicant can be expected to return to China to make an application for entry clearance pursuant to Chikwamba . I agree with Ms Thelen that the respondent had not unlawfully applied an exceptionality test for the following reasons:

Yet, I regularly encounter objections by applicants to the use of the word “ exceptional ” or the phrase “ exceptional circumstances ” by decision-makers in assessing Article 8 claims outside the IRs on the ground that it shows that the respondent has unlawfully applied the test of exceptionality contrary to Huang . The mere use of these phrases is not enough to show that the test of exceptionality is being used contrary to Huang . An applicant must point to a defective process of reasoning that shows that the test of exceptionality was in fact applied.

In the instant case, the decision-maker plainly considered the question of proportionality. This is evident not only from the fact that the words “ proportionate ” and “ disproportionate ” were used a total of three times in the second decision letter in the assessment of the Article 8 claim outside the IRs and once in the “Summary” at the end but also from the reasoning (see the words in bold in the quote at my para 8 above) which shows that the decision-maker looked for factors to weigh against the state's interests.

I therefore reject Mr Palmer’s submission that the respondent had unlawfully applied the test of exceptionality contrary to guidance in Huang .

The third argument concerned the proposition advanced on the applicant’s behalf, in reliance upon Chikwamba, that it will only rarely be proportionate to expect a foreign national who is enjoying family life in the United Kingdom to return to his or her home country in order to make an application for entry clearance. In R (Kotecha and Das) v Secretary of State for the Home Department [2011] EWHC 2070 (Admin), Burnett J (as he then was) considered the judgment in Chikwamba and concluded, at para 48:

Thus, it is misconceived to suggest, in reliance upon Chikwamba, that it is only rarely that it will be proportionate to expect a claimant to make an application for entry clearance from abroad irrespective of his or her individual's circumstances. Lord Brown specifically said in Chikwamba (at para 42) that:

Mr Palmer relied upon para 30 c) and d) of Hayat to suggest that there must be a “ sensible reason ” to require an individual to make an application for entry clearance from abroad. I reject the submission. I do not accept that, in using the phrase “ sensible reason ”, Elias LJ was setting out the test for applying the guidance in Chikwamba , nor that he reversed the burden of proof. The burden remains upon the applicant to place before the Secretary of State all material that he or she relies upon to suggest that removal pursuant to the refusal of leave would breach Article 8 ( Kotecha , at para 56).

Mr Palmer also relied upon the judgment of Turner J in R (Zhang) v Secretary of State for the Home Department [2013] EWHC 891 (Admin), in particular, paras 74 and 77, which I will now set out, including para 78:

It must follow from this that the application of the blanket requirement to leave the country imposed by paragraph 319C(h)(i) of the immigration rules is unsustainable. It is simply not consistent with the ratio of the decision in Chikwamba that this paragraph, as presently worded, should continue to form part of the rules. I am not prepared, however, to make a formal declaration on the matter. It is not the function of the court to redraft the rules but I would predict that the Secretary of State would in future face difficulties in enforcing requirement (h)(i) as presently worded in all but a small number of cases in which Article 8 is engaged.”

Mr Palmer relied upon para 74 of Zhang to support the proposition that it is only in a small minority of cases that a claimant should be required to leave the United Kingdom to make an application for entry clearance. However, as paras 77 and 78 make clear, Turner J was considering the blanket requirement imposed by para 319C(h)(i) of the IRs the effect of which precluded the claimant from making an application for leave to remain in the United Kingdom but not from making an application for entry clearance. Rule 319C was framed in mandatory and unambiguous terms (paras 20 and 21 of Zhang ). In other words, Turner J was considering a rule that required the claimant to leave the United Kingdom for no reason other than that rules must be obeyed irrespective of the circumstances. It is in that context that para 77 of Zhang should be considered. In my judgement, Zhang is entirely consistent with the other authorities discussed above.

In my judgement, if it is shown by an individual (the burden being upon him or her) that an application for entry clearance from abroad would be granted and that there would be significant interference with family life by temporary removal, the weight to be accorded to the formal requirement of obtaining entry clearance is reduced. In cases involving children, where removal would interfere with the child's enjoyment of family life with one or other of his or her parents whilst entry clearance is obtained, it will be easier to show that the balance on proportionality falls in favour of the claimant than in cases which do not involve children but where removal interferes with family life between parties who knowingly entered into the relationship in the knowledge that family life was being established whilst the immigration status of one party was “precarious”. In other words, in the former case, it would be easier to show that the individual's circumstances fall within the minority envisaged by the House of Lords in Huang or the exceptions referred to in judgments of the ECtHR than in the latter case. However, it all depends on the facts.

In Chikwamba , it was accepted that an application for entry clearance would succeed and that went in the claimant’s favour. It is unresolved whether, conversely, the Secretary of State's view that an application for entry clearance would be unlikely to succeed (if she took that view in any individual case) means that the Chikwamba principle cannot apply. I did not hear argument on this point. I therefore reach no concluded view on it. However, in my experience, applicants frequently rely upon the Secretary of State's silence on this point as synonymous with an acceptance by her that an application for entry clearance would succeed, in that, it is said that the Secretary of State has not said that an application would not succeed. To state the obvious, if an individual makes an application for leave to remain on the basis of Article 8, the Secretary of State is only obliged to reach a decision on that application. She is not obliged to consider further (although she is not prevented from doing so if she wishes to) whether an application for entry clearance would succeed.

In the instant claim, the applicant has relied upon the Chikwamba to make good her Article 8 claim. She has not placed before the respondent any evidence to show that her removal (if removal notionally took place consequent upon the refusal of leave to remain on the basis of Article 8) would interfere with any family life being enjoyed. It has been accepted on her behalf that there are no insurmountable obstacles to family life being enjoyed between her and Mr Cheung in China. Mr Palmer appeared to retract from para 7 of his skeleton argument, which specifically states that it has to be accepted that the applicant is unable to argue that there are no insurmountable obstacles to her returning to China to apply for entry clearance. Even if it is the case that this was not a concession as to the facts, the reality is that the applicant has not placed any evidence of her circumstances and/or those of Mr Cheung. The couple do not have children. There was quite simply no evidence before the respondent to show that the decision would result in any interference with family life.

The applicant has relied solely upon the case-law concerning the Chikwamba principle in an attempt to make good her Article 8 claim outside the IRs. Unfortunately, this misguided approach is not uncommon. Indeed, in the instant claim, it would be correct to say that such evidence as there was before the respondent undoubtedly shows that the respondent was fully entitled to take the view that it would be proportionate to require the applicant to make an application for entry clearance from China, pursuant to the guidance in Chikwamba. Her parents and siblings live in China. There was no evidence or explanation why, even if there were no insurmountable obstacles to family life being enjoyed on a permanent basis in China, temporary separation for the purpose of making an application for entry clearance would interfere with family life. The applicant simply has not descended into any detail about her Article 8 claim, choosing instead to rely upon legal principles. She made no case as to any form of hardship that she and/or her husband would suffer if she were to be required to make an application for entry clearance.

Against all this was the fact that the applicant’s leave had expired well before she and Mr Cheung began their relationship. They were married in the full knowledge that the applicant did not have leave and that her immigration status was precarious. There was no evidence of the length of the disruption to family life (if family life was indeed disrupted) if the applicant returned to China to apply for entry clearance. Weighing all of the factors in the balancing exercise, there was plainly only one answer, on any legitimate view.

Finally, I turn to consider Mr Palmer's argument that the second decision was prompted by the grant of permission. Ms Thelen did not accept that the respondent was forced to make the second decision by the grant of permission. In this respect, she relied upon paras 70 and 71 of Singh and Khalid, where the Court of Appeal considered point 3 of para 9 of the judgment of Mr. Michael Fordham QC sitting as a Deputy High Court Judge in R (Ganesabalan) v Secretary of State for the Home Department [2014] EWHC 2712 (Admin). Para 9 of Ganesabalan reads:

In the case of Khalid in Singh and Khalid , the decision letter treated the fact that Ms Khalid could not satisfy the requirements of the IRs as definitive. There was no record of any consideration of whether her claim under Article 8 involved issues that were not adequately addressed by reference to the IRs. She had relied upon the Chikwamba principle. The Court of Appeal said at para 68 of the judgment in Singh and Khalid that there was no reference to the possibility of a claim outside the IRs at all and, at paragraph 69, that Mr. Blundell for the Secretary of State rightly did not seek to defend the Secretary of State's failure the address the question of whether Ms Khalid had a claim outside the IRs.

The question then arose whether the Secretary of State's failure to consider Ms Khalid's Article 8 claim outside the IRs meant that the decision was unlawful. Underhill LJ noted that Mr. Fordham at point (3) of Ganesabalan treated the failure to consider the Article 8 claim outside the IRs as itself rendering the decision unlawful but if the overlooked claim was hopeless the Court would not grant relief. Underhill LJ considered the decisions of the House of Lords in Belfast City Council v Miss Behavin’ Limited [2007] UKHL 19 and R (Nasseri) v Secretary of State for the Home Department [2009] UKHL 23 which establish that “ when a claimant seeking judicial review alleged infringement of a Convention right the court is concerned not with the quality of the decision-making process but with whether the claimant's rights had been … violated ”.

Underhill LJ concluded that a procedural failure of the sort that had occurred in the case of Ms Khalid did not necessarily render the Secretary of State's decision unlawful. Underhill LJ accepted the submission of Mr. Blundell for the Secretary of State that it did not matter whether the Secretary of State had failed consciously to consider whether Ms Khalid had an Article 8 claim outside the IRs unless there was in fact such a claim or, in the case of a permission application, unless there was arguably such a claim (para 70 of Singh and Khalid ). Underhill LJ held that Ms Khalid could only challenge the Secretary of State's decision by showing a substantive breach of her rights under Article 8 and that this was in form a different approach from that advanced by Mr. Fordham at point (3) of his summary at para 9 of Ganesabalan , albeit that “ in substance the two approaches come to much the same thing ”.

Para 71 of Singh and Khalid is very important and is worth emphasising. In cases where the IRs do not fully address an Article 8 claim so that it is necessary (pursuant to Nagre ) to consider the claim outside the IRs, a failure by the decision-maker to consider Article 8 outside the IRs will only render the decision unlawful (and thus liable to be quashed) if the claimant in fact shows that there has been (or, in a permission application, arguably has been) a substantive breach of his or her rights under Article 8.

I agree with Ms Thelen that, even if the second decision had not been made and the only issue before me was whether the first decision was lawful, it is clear that the first decision was lawful notwithstanding the failure of the decision-maker to consider the applicant's case (that it would be disproportionate to require her to apply for entry clearance) outside the IRs. This is because she had no Article 8 claim outside the IRs, for the reasons given above.

For all of the reasons given above, the first decision and the second decision are lawful.