What happens when you enter the UK as a visitor and then apply to remain here so that you can stay with your British family members?

Most immigration lawyers can easily answer this question: your application will be refused.

But things can get a bit more complicated. While it is clearly preferable to make the application from abroad, all immigration lawyers will have come across cases where that is not possible.  

What if plans change after entering the UK? What if, as the expiry of the visit visa approaches, a doctor advises against travel for medical reasons? What if there is a risk that the financial requirement for a spouse visa won’t be met and the person will not be able to return?

What if the person has never lived in their country of nationality (where they would need to apply from), having been born and raised in another country?

What if applying from abroad would be disruptive and not in the best interests of the applicant’s British child? Is it reasonable to expect that child to leave the UK?

What about the Chikwamba case, which confirmed that there is no public interest in requiring an applicant to leave the UK merely in order to make a successful application from abroad? Surely, if the other requirements of the rules are met, the application can simply be granted?

In the recent case of Younas (section 117B(6)(b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC) the Upper Tribunal answers all of these questions, all in favour of the Home Office.

Change of plans or subterfuge?

The Upper Tribunal did not believe that Ms Younas’s plans had changed after entering the UK. She claimed that, when her visit visa was close to expiring, she was advised not to travel by her doctor as she was pregnant at the time and risked a miscarriage. After noting the absence of medical evidence the tribunal went on to decide that there was “no doubt” that the appellant had entered the UK with the intention of remaining permanently.

The tribunal also did not believe that her partner, who was a carpet fitter on a zero hours contract, would struggle to meet the financial requirement for a partner visa:

We find it more likely than not that the appellant’s partner’s current income meets the financial eligibility threshold but that even if it does not he could in a short space of time increase his income (by, for example, taking on more carpet fitting work from different sources) in order to meet the threshold. [Paragraph 64]

The appellant’s claims sound perfectly believable to me, and I’m not sure it is quite as easy as the tribunal suggests to simply earn more money — but I didn’t hear the evidence so will reserve judgement.

Lack of familiarity with country of nationality  

The claim that there would be difficulties returning to Pakistan because Ms Younas was born and raised in Dubai, and had never lived in Pakistan, was given short shrift:

Although the appellant has never lived in Pakistan and would consequently face some difficulties and challenges establishing herself in the country, she is familiar with the language, culture, religion and societal norms of Pakistan, having grown up in a Pakistani family and within the Pakistani community in Dubai. [76]

As such, she could return there in order to make an application to return to the UK.

But what about the child?

The tribunal accepted that the appellant’s British daughter would need to accompany her to Pakistan, which would not be in her best interests. However this was immediately qualified with the finding that:

…she will not suffer any detriment by doing so, given the temporary nature of the separation. [101]

As to section 117B(6), the tribunal decided that the length of time spent abroad:

…is part of the real world factual circumstances in which a child will find herself and is relevant to deciding, for the purpose of section 117B(6)(b), whether it would be unreasonable to expect the child to leave the UK… The “real world” context includes consideration of everything relating to the child, both in the UK and country of return, such as whether he or she will be leaving the UK with both or just one parent; how removal will affect his or her education, health, and relationships with family and friends; and the conditions in the country of return. The conduct and immigration history of the child’s parent(s), however, is not relevant. [110] & [111]

Given that the child would only be outside the UK temporarily, the tribunal decided that it would be reasonable to expect her to leave the UK.

A further argument, based on the Zambrano principle that a child should not be deprived of the genuine enjoyment of their EU citizenship by being required to leave the territory of the EU, was dismissed for the same reason.

Chikwamba

Back in 2008 the House of Lords highlighted the futility of requiring a migrant to leave the UK merely in order to make a successful immigration application from abroad (see this post for a more detailed explanation). Ms Younas sought to use this principle to her benefit.

The argument was rejected because of the finding that Ms Younas had entered the UK as a visitor even though her real intention was to remain in the UK with her partner:

…in the light of this immigration history, the public interest in the appellant’s removal from the UK is strong; and the strength of that public interest is not significantly diminished because she will be able to re-enter the UK. The integrity of, and the public’s confidence in, the UK’s immigration system is undermined if a person is able to circumvent it, as the appellant has attempted to do by entering the UK as a visitor with the intention of remaining permanently. Requiring the appellant, in these circumstances, to leave the UK in order to make a valid entry clearance application as a partner, far from being merely a disruptive formality, serves the important public interest of the maintenance of effective immigration controls. [98]

The Chikwamba case was distinguished on its facts. It did not involve a visitor who had attempted to stay permanently. It involved a failed asylum seeker from Zimbabwe whose removal was temporarily suspended because of the harsh conditions in Zimbabwe.

Comment

I considered giving this article the title: “Chikwamba is dead”. However I refrained as, aside from being unnecessarily melodramatic, this would be inaccurate. With a different set of facts, a case based on the Chikwamba principle could still be successful. The Upper Tribunal was careful to distinguish Chikwamba on its facts, rather than declare the general principle unsound.

That being said, it will be a very difficult argument to make. A British child is not enough. Separation from your partner is not enough. There would need to be something more, such as a medical condition which would make applying from abroad unbearable for the applicant, their partner, or their child. Particularly harsh conditions in the country to be returned to, as was the case in Chikwamba, might also do the trick.  

There may also be cases where, on the facts, it would be unreasonable to expect a British child to leave the UK, even for a short period of time. A child with upcoming exams at school is a possible example. The child in this case was not yet attending school. 

One particularly striking feature of the case is that the Home Office accepted there would be insurmountable obstacles to family life continuing in Pakistan. Had Ms Younas overstayed, and been able to access the exception in paragraph EX.1, she would have met the rules. But because she applied whilst in the UK as a visitor, her application was refused. I’ve never understood this anomaly. Why do the Immigration Rules encourage overstaying?

Nick recently commented that there are some decisions which make you wonder whether the government has correctly interpreted the “public interest” at play in immigration cases. I was certainly wondering that when reading this decision. Is this really what the public want?

To borrow Nick’s caricature of ‘The Government’ and ‘The Public’ discussing immigration policy in the pub, I can imagine the discussion of this case going along the lines of:

Public: Got to do something about all this uncontrolled immigration!

Government: I know.

Public: Can you tighten up the rules and crack down on abuse?

Government: We can certainly try!

[Several years later]

Public: [gulps beer] How have you been getting on?

Government: Pretty well! We just managed to send someone with a British partner and child to a country she’s never lived in.

Public: Ah, is she one of those foreign criminals I keep hearing about?

Government: No

Public: Well what did she do, surely she must have done something to justify being separated from her British family?

Government: She… and you’re not going to believe this… entered the UK as a visitor and then tried to stay permanently!

Public: Ah, I see. So she doesn’t qualify for a family visa?

Government: Oh, she probably does, but we still refused her.

Public: Why?

Government: Because she came here as a VISITOR! She needs to leave and make an application from abroad. Then we’ll let her stay.

Public: That sounds a bit pointless. Why can’t you just let her stay now?

[repeat on a loop]