R (on the application of Chen) v Secretary of State for the Home Department) (Appendix FM – Chikwamba- temporary separation-proportionality) UKUT 189 (IAC)
SUMMARY
The part of the Immigration rules that deals with Family members, Appendix FM, does not consider whether it would be proportionate to expect an individual to return to their home country to make an entry clearance application to re-join their family members in the UK. There may be cases where there are no insurmountable obstacles to family life being enjoyed outside the UK but where temporary separation so as to make the application for entry clearance is disproportionate.
In all cases, it will be for the individual to put before the Secretary of State evidence that the temporary separation will interfere disproportionately with the protected qualified right to family life.
It is not enough to rely on the case of Chikwamba v SSHD (2008) UKHL 40.
In an in country application for leave to remain on the basis of Article 8 family life, the Secretary of State is not obliged to consider whether an application for entry clearance if made, will be successful. Her silence on the matter therefore does not mean that the requirements for entry clearance to be granted are satisfied.
In cases where the Immigration rules do not fully address an Article 8 claim so that the application is considered outside of the Immigration rules, a failure to consider Article 8 outside of the rules will only make the decision unlawful if the claimant shows there is or has been a breach of their Article 8 rights.
THE FACTS OF THE CASE
Ms Chen, a student, entered the UK in 2007 as a student, her leave expired in 2009 but she remained and overstayed, married her husband in 2012. The Immigration rules prevented her from making an in country application to stay as a spouse becuase she had no lawful leave in the UK unless she could show ‘insurmountable obstacles’ to them living abroad. She said there were no ‘insurmountable obstacles’ but it was disproportionate for her to travel abroad only to apply and come back to the UK. It was inconvenient and expensive. The Judge found she had not shown that was the case or that she met the requirements of the Immigration Rules. Her application for Judicial Review did not succeed.
WHAT DOES THIS MEAN FOR YOU ?
Other cases COULD succeed if good supporting evidence is put forward as to how and why it would be disproportionate for you to have to leave the UK to return to re-join your family members. So do put in that evidence to show the Home Office for them to consider. It could make all the difference.
`