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StairsLast month saw the advent of a very useful decision from the High Court concerning the lack of provision in the Immigration Rules to allow migrants in the Points-Based System to switch whilst in-country into a PBS dependent category: Zhang, R (on the application of) v SSHD [2013] EWHC 891 (Admin).  The category analysed within this judgment is that relating to a Tier 2 migrant seeking to switch to become a Tier 1 (PSW) dependant – Paragraph 319C (h)(i).  Mr Justice Holman’s judgment has wider application and so it is certainly not a case to let slip under the radar.

Rather remarkably, the claimant in this case brought the Judicial Review claim once she had returned from China where she had sought the required entry clearance.  She had followed legal advice that she could either leave the UK to seek entry clearance and comply with the Rules or overstay and rely on an Article 8 type claim.  The claimant had been working in the UK as a Tier 2 Migrant but unfortunately was made redundant.  She had found other employment but her employer was not able to issue her with a sponsorship certificate and so she could not seek to change the conditions of her Tier 2 leave.  Meanwhile, the claimant’s husband was also here in the UK and was in the process of applying for leave to remain as a Tier 1 Post-Study Worker and so switching to become his dependent became an option.  Apart from the fact that the Rules say ‘no’.

Not wishing to overstay and compromise her flawless immigration history, the claimant opted to return to China and after much delay, she obtained the entry clearance as her husband’s dependant and returned to the UK.   Regrettably, because of the delays, her job offer was withdrawn but she followed this through by way of a Judicial Review challenge to the legality of the Immigration Rules requiring her to return for entry clearance.

This judgement usefully reviews the relevant principles established by the House of Lords’ Chikwamba judgment arising out of the policy of the SSHD to require those who did not meet the requirements of the Immigration Rules to return abroad and seek the appropriate entry clearance.  Mr Justice Holman finds that:

37.  (…) (T)he wording of requirement (h)(i) would appear difficult to reconcile with the approach of the House of Lords in Chikwamba to the issue of “out of country” applications.  The wording of requirement (h)(i) admits of no exceptions to the imperative that those wishing to change their visa from “General” to “Partner” status must, without exception, leave the UK so to do.

However, Mr Justice Holman did fall short of declaring the actual provisions of the Immigration Rules incompatible with Article 8.  At Paragraph 77, he concludes:

77.  I, therefore, come to the clear view that save in particular cases (such as those involving a poor immigration record – as in Ekinci v Secretary of State for the Home Department [2003] EWCA Civ 765 or where the engagement of Article 8 is very tenuous – as in R(Mdlovu) v Secretary of State for the Home Department [2008] EWHC 2089) it will be rare indeed that the immigration priorities of the state are such as to give rise to a proportionate answer to Article 8 rights to family life where requirement (h)(i) is engaged.

78.  It must follow from this that the application of the blanket requirement to leave the country imposed by paragraph 319C(h)(i) of the immigration rules is unsustainable. It is simply not consistent with the ratio of the decision in Chikwamba that this paragraph, as presently worded, should continue to form part of the rules. I am not prepared, however, to make a formal declaration on the matter. It is not the function of the court to redraft the rules but I would predict that the Secretary of State would in future face difficulties in enforcing requirement (h)(i) as presently worded in all but a small number of cases in which Article 8 is engaged.

While the rules are not struck down as such, the effect of the judgment is similar to FH (Iran) on post flight refugee spouses and Quila on the spouse visa age: most affected cases should succeed on human rights grounds. Both those cases led to amendment of the rules, although it is somewhat doubtful that will occur in this case.

In terms of wider application, there are countless other categories where switching from one type of visa to another is not permitted by the rules from within the UK and a trip abroad is needed. It has been consistent Government policy since David Blunkett’s tenure as Home Secretary to require a change of visa from abroad rather than within the UK and the requirement has gradually spread widely throughout the rules. Where there is a family life engaged (this will not always be the case of course) this judgment is strong authority that departure from the UK is disproportionate. This option will not always be appropriate for the individual applicant, though. Firstly, although it seems that the Home Office is not seeking to appeal the judgment, past form suggests that it is highly unlikely that the effect of the judgment will be accepted in good grace. It is highly likely that Home Office officials will continue to refuse in-country switching applications, necessitating lengthy and expensive appeals or judicial reviews. Secondly, if an application, appeal or judicial review does succeed on human rights grounds in line with this judgment the Home Office policy is to grant three years of Discretionary Leave, which for various reasons might not be suitable for the particular applicant. A trip abroad for a straightforward change of visa might therefore continue to be appropriate in some cases.

Finally, note that in Nagre a very senior Home Office official bizarrely complained to the court that appeals being allowed on human rights grounds led to more generous grants of leave than would otherwise be the case because of the Home Office policy on what leave to grant. As if this was the fault of the judges rather than the Home Office!

[Some additional reporting from FM]
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Sarah Pinder

Sarah is a specialist immigration barrister at Goldsmith Chambers in London. She also practices in family law and has a particular interest in cross-over issues within the two areas of law. Prior to joining the Bar, Sarah worked for 6 years in the not-for-profit sector as a specialist immigration caseworker.