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Should I stay or should I go?

Should I stay or should I go?

G W F Hegel

The Hegelian dialectic is sometimes expressed as thesis followed by anti-thesis followed in turn by synthesis. Over time, compromise is the outcome.

A tendency towards the middle ground can often be seen in human rights case law and immigration policy. A radical new case is handed down or law is passed. Advocates and judges seek to distinguish it to mitigate the perceived unjust individual effects. Such perception is based on the earlier paradigm. A new understanding is reached, which everyone often thinks is based on a ‘true’ understanding of the original proposition.

This may be the way things work in practice, but the case or the law itself is often unmodified and its intent and meaning is actually the same as ever it was.

Of the three major House of Lords immigration cases of 2008 (‘Good news from on high‘) EB (Kosovo), Beoku-Betts and Chikwamba, the first two have I think been more or less immune from the tendency to move to the middle ground. The principles then established are still being fairly faithfully applied today. Not so with Chikwamba.

In Chikwamba the House of Lords held that it was usually going to be disproportionate in a family case for a person to leave the UK simply to re-apply from abroad, for no other reason than this was the normal procedure set out in the rules.

The Home Office response to Chikwamba seemed to be to argue that unless one was from Zimbabwe, had children and had a name beginning with C then the case had no relevance. This is a common reaction by advocates of any variety who are perhaps too wrapped up in their client’s case to accept that a precedent is against that case: to seek to distinguish it on facts and try and persuade the judge that there is no point of principle in play.

The High Court case of R (on the application of Kotecha) v Secretary of State for the Home Department [2011] EWHC 2070 (Admin) has sometime been relied on by Presenting Officers as modifying the Chikwamba principle. Properly read, though, Kotecha is just the application of Chikwamba to two individual cases. One of the cases succeeds and the other fails. It is not guidance nor is it authority to undermine the Chikwamba principle.

If confirmation of the above analysis is needed it can be found in the new Upper Tribunal case of Hayat (nature of Chikwamba principle) Pakistan [2011] UKUT 00444 (IAC). The official headnote is as follows:

The significance of Chikwamba v SSHD [2008] UKHL 40 is to make it plain that, in appeals where the only matter weighing on the respondent’s side of an Article 8 proportionality balance is the public policy of requiring an application to be made under the immigration rules from abroad, that legitimate objective will usually be outweighed by factors resting on the appellant’s side of the balance. The Chikwamba principle is not confined to cases where children are involved or where the person with whom the appellant is seeking to remain has settled status in the United Kingdom.

For those without current leave to remain wondering whether they should remain in the UK to make an application or return overseas to apply there, Chikwamba is a great assistance. There are considerations pointing in both directions, though. Irrespective of what the law requires, the Home Office routinely refuses in-country applications in family cases, forcing protracted and expensive litigation to secure success. Returning abroad is no panacea, though, as ECOs in certain countries seem to look for reasons to refuse any person who has broken immigration laws in the past, irrespective of the impact such refusal will have on their family in the UK. See this earlier post for a more detailed discussion of the issue. Not a lot has changed since then.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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