Court of Appeal dismisses appeal against refusal of spouse application

In the recent case of Butt v Secretary of State for the Home Department [2025] EWCA Civ 189, the Court of Appeal dismissed an appeal against the refusal of an application for leave to remain as a spouse by a person who was in the UK as an overstayer. In rejecting the appeal, the court provided a useful reminder of the interplay between the public interest of immigration control, article 8 ECHR and the intervening case law, in particular the cases of Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 and Alam & Anor v Secretary of State for the Home Department [2023] EWCA Civ 30.     

Background

The appellant was a Pakistani national who had arrived in the UK in 2006 on a visitor’s visa. He made an application to remain as a spouse in 2016. The Home Office refused the application on the basis that they did not accept there were insurmountable obstacles or exceptional circumstances that would impede the couple from continuing to enjoy their family life in Pakistan. At this point in time, the appellant also could not satisfy the English language test.

On appeal in the First-tier Tribunal, the appellant argued that he and his wife would not be able to relocate to Pakistan due to family disapproval. However, the tribunal did not find any independent evidence of such disapproval of the marriage and held that the couple would not suffer any significant or serious hardship upon relocation.

The appellant also relied upon the argument raised in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41 that there had been a “disproportionately long” delay in removing the appellant whilst he was without status and during which time he had formed his relationship. This argument was rejected on the basis that the appellant had successfully evaded immigration control until he resurfaced and made his application in 2016. This was distinguished from EB (Kosovo) where the applicant had formed a relationship with their partner whilst awaiting a decision on their asylum claim.

The appellant then made a second application for leave to remain as a spouse on 4 May 2021. This was rejected by the Home Office on the basis that they did not (contrary to the recorded findings of the tribunal) consider the appellant to be in a genuine and subsisting relationship with his partner nor would it be unjustifiably harsh for them to continue their relationship outside of the UK.

The decision maker also noted that the appellant had been in the UK without any valid leave for “5394 days”. Again, Mr Butt appealed against the decision.

The “Chikwamba” argument

Before the First-tier Tribunal, the appellant attempted to argue that this was a “Chikwamba case.” Chikwamba is an older case heard in the House of Lords where a Zimbabwean national appealed against the refusal of her article 8 claim based on her marriage. The appeal was allowed on the basis that it would be disproportionate to require her to return to Zimbabwe and apply for entry clearance.

Again, Chikwamba could be distinguished from this case. In Chikwamba, the appellant’s husband was a refugee and unable to return to Zimbabwe without facing persecution. They had a daughter together, born in the UK. At that time, returns to Zimbabwe had been suspended due to the volatile situation in the country.

The House of Lords concluded that the only reason that the appellant would need to return to Zimbabwe was a procedural one – only to allow her to apply for entry clearance. There was no doubt otherwise that she would succeed in her application having satisfied all other necessary requirements in Appendix FM. The principle derived was that it would rarely be proportionate to refuse an application on the basis that an appellant must apply for entry clearance from abroad.

The House of Lords however recognised that the purpose of the Home Office policy requiring partners and spouses to return to their countries of origin to apply for entry clearance was to ensure effective immigration control. For example, should the appellant have had a poor immigration history or if she were able to return to Zimbabwe safely and for a short period, then the decision may not have gone her way. In summary, Chikwamba, is a straightforward lesson in the balance between effective immigration control and consideration of the factors relevant to the proportionality assessment.  

Chikwamba was later relied upon unsuccessfully in the case of Alam which dealt with two appeals brought by Bangladeshi nationals who had significantly overstayed. They had then applied, like the appellant in this case, for leave to remain as spouses.

In Alam, Lady Justice Laing (who also presided over the current case) clarified that, first, Chikwamba would only be relevant on “the narrow procedural ground” that an applicant must leave the UK to apply for entry clearance. Second, even in circumstances where an application for entry clearance is certain to succeed, an article 8 analysis is always necessary. It may be disproportionate to refuse, however a proportionality assessment is nevertheless required.

Back to Mr Butt. At the point of the second appeal, he satisfied the necessary requirements in the Appendix FM as he had passed the English language test and was financially self-sufficient. It was argued that this was therefore a Chikwamba case. The First-tier Tribunal found that the public interest in removing the appellant was outweighed by the insurmountable obstacles that the appellant and his wife would face in Pakistan. The Home Office appealed to the Upper Tribunal.

In the Upper Tribunal, the judge found that Chikwamba (as confirmed in Alam) had limited application in current practice and held that the First-Tier Tribunal had misunderstood the reasoning.

The Court of Appeal

The Court of Appeal accepted that there were four errors of law made by the First-tier Tribunal. The tribunal had misapplied Chikwamba which they found was not relevant to the case.

The tribunal had failed to consider whether there were insurmountable obstacles to private life in Pakistan or exceptional circumstances and simply found that it would be disproportionate for the appellant to return to Pakistan to apply for entry clearance without reasoning. The tribunal did not consider the fact that the Home Office had not simply rejected the application on the basis that the appellant needed to apply from Pakistan (as in Chikwamba) but due to a number of other factors relevant to the article 8 assessment.

The Court of Appeal found that there were no compelling factors in the case. The appellant had not evidenced any insurmountable obstacles and there had been no disproportionate delay in decision making. In any event, if the appellant did return to Pakistan, this was not a case where the entry application was certain to succeed and, conversely, would have been bound to fail on general grounds for refusal (due to his unlawful presence in the UK as an overstayer).

Conclusion

The case provides a useful analysis of older and more recent case law relating to article 8 cases. It illustrates the importance of the proportionality balancing act vis a vis immigration control and the inherent difficulties that individuals with less attractive immigration histories may face when making this type of application and the importance of evidencing any relevant factors that may swing the balance.

The case serves as a reminder of the high hurdle of the public interest in immigration control that will need to be surmounted in order to succeed, particularly in cases where immigration history is poor.