A gavel.

How to deploy the Chikwamba argument in immigration appeals

The principles considered in the case of Chikwamba v SSHD [2008] UKHL 40 continue to perplex and trouble immigration lawyers and judges alike. It is an area of law that has had a significant amount of litigation, most recently in the case of Alam & Anor v SSHD [2023] UWCA Civ 30.

So what is the Chikwamba principle? It applies in in-country spouse or partner appeals where all of the requirements of Appendix FM are met apart from the immigration requirement. The Appellant will have proved that they meet the suitability, relationship, English language, and financial requirements, but at the time of the application, they held no valid leave to remain.

The case of Chikwamba discussed what weight should be attributed to this fact in the Article 8 ECHR balancing exercise, and in particular whether it would be disproportionate for the Appellant to have to return to their home country simply to make an application for entry clearance that would be bound to succeed.

Chikwamba stated that it will only be in rare cases that the Tribunal should dismiss an appeal under Article 8 solely on the ground that the Appellant could re-apply for entry clearance from their home country. However, the case is often incorrectly relied on to state that there is little to no public interest in removing Appellants in this situation. As more recent cases have made clear, this is not the case.

The principle was re-visited in Younus (section 117B(6)(b); Chikwamba; Zambrano) [2020] UKUT 129, and most recently in the case of Alam quoted above.

In Alam, Lady Justice Laing has made clear that all that the Chikwamba principle does is confirm that it might be disproportionate to remove a person whose entry clearance application would be certain to succeed. It is clarified that Chikwamba is not authority for the assertion that there is no public interest in removing a person.

Alam, like Younus a couple of years ago, clarifies and narrows the principles set out in Chikwamba. They confirm that there may be circumstances in which removal would be disproportionate, but the fact that the Appellant would succeed in their application for entry clearance is only one relevant factor which should simply “go into the pot” during the Article 8 balancing exercise.

So when will removal be disproportionate? As always, it is a question of fact. Relevant factors will include, but are certainly not limited to, the appellant’s immigration history; attempts to regularise their status prior to the application under consideration; any other family or friends they have in the UK including children; any previous allegations of deception or overstaying.

One potentially relevant factor in the last year or so has been the temporary suspension of priority applications for entry clearance applications in family cases. This was owing to the Ukraine scheme set up by the Home Office and a reprioritisation of resources. Appellants could legitimately argue that separation would take a minimum of 6 months before they were reunited.

Now, however, the Home Office is reintroducing priority service applications for entry clearance applications. So whilst it will cost upwards of £500, this argument is not as strong as it used to be.

The cases of Younus and Alam do unfortunately narrow the principles of Chikwamba. It is also of course the case that Chikwamba was decided prior to the introduction of section 117B of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014). This requires the Tribunal to consider, in all cases, various factors including the importance of the maintenance of effective immigration control, and the limited weight to be attracted to private and family life established in the UK when a person is here unlawfully and precariously.

It is essential when preparing these cases that there is more than just the Appellant and sponsor’s assertion that they could not relocate or be temporarily separated. Detailed statements, bundles, and high quality evidence and advocacy will be essential. Although the Chikwamba principle still exists, it is not enough by itself.

By Kim Pullinger, pupil barrister

imperium chambers

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