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25 August 2008
By Staff Reporters
Britain's immigration policy of forcing spouses whose partners have legal stay, to return home and apply for stay in their home countries could be a thing of the past.
A 'failed asylum-seeker' from Zimbabwe married a Zimbabwean man with refugee status and refused to return to Zimbabwe to apply for a settlement visa as a spouse, arguing that she should be able to do this within the UK.
She fought her way through the courts until the Law Lords, the highest British court of appeal, ruled in her favour in June this year. The case is likely to have far reaching implications for many people in this predicament.
Below is a transcript of the case.
IMMIGRATION — Asylum — Refusal - Claimant required to return to home country to apply for entry clearance — Whether proportionate and appropriate — Right to respect for family life — Desirability of maintenance and enforcement of immigration control — Human Rights Act 1998, Sch 1, Pt I, art 8
Chikwamba v Secretary of State for the Home Department [2008] UKHL 40; [2008] WLR (D) 202
HL(E): Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Baroness ale of Richmond and Lord Brown of Eaton-under-Heywood: 25 June 2008
An appeal based on art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms against refusal of asylum and leave to enter should not be routinely dismissed on the ground that it would be proportionate and more appropriate for the applicant to return to her home country to apply for leave to enter.
The House of Lords so held when allowing an appeal by the claimant, Sylvia Chikwamba, from the decision of the Court of Appeal (Auld, Jonathan Parker and Lloyd LJJ) [2005] EWCA Civ 1779 dismissing her appeal from the Immigration Appeal Tribunal, which had affirmed an adjudicator.
LORD BROWN said that the claimant had arrived from Zimbabwe in April 2002 and sought asylum. She had been refused asylum and leave to enter, but removal of failed asylum seekers to Zimbabwe had been suspended because of conditions there. In September 2002 she had married a Zimbabwean national who had been granted asylum.
In February 2003 the Secretary of State had refused her claim that her removal to Zimbabwe would breach her art 8 right to respect for her family life. In May 2003 an adjudicator, accepting that conditions in Zimbabwe were “harsh and unpalatable”, had dismissed her appeal.
In April 2004 a daughter had been born to her and her husband. In January 2005 the tribunal had dismissed her appeal from the adjudicator essentially on the basis that she could and should return to Zimbabwe to apply for entry clearance to return to the United Kingdom. Auld LJ had said that it was only in exceptional cases that an adjudicator or the tribunal could allow art 8 considerations to prevail over the public interest in maintaining efficient and orderly immigration control.
The Secretary of State’s Asylum Policy Instruction on art 8 in short required the claimant to be separated from her husband and her child from its father for a “limited period of time” and regarded that “temporary” interference with her family life as “proportionate”. His Lordship did not accept that an appeal to an adjudicator could never be dismissed on the basis that the appellant ought to leave the country to apply for entry clearance abroad, but, rather than the Secretary of State’s policy being routinely applied in all but exceptional cases, only comparatively rarely, certainly in family cases involving children, should an art 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad.
As to the present case, it could not be said that effective immigration control required that the claimant should go back to Zimbabwe and remain there for some months obtaining entry clearance before she could resume her family life, which meantime would have been gravely disrupted. Removal to Zimbabwe would violate her and her family’s art 8 rights.
LORD BINGHAM and LORD HOPE agreed.
LORD SCOTT and BARONESS HALE delivered concurring opinions.
Appearances: Michael Fordham QC and Raza Husain (The Rights Partnership, Birmingham) for the claimant; Monica Carss-Frisk QC and Steven Kovats (Treasury Solicitor) for the Secretary of State.
Reported by: Michael Gardner, barrister
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