Lord Justices Hickinbottom, Kitchin and Coulson have delivered an interesting judgment concerning the free-standing balancing exercise of Article 8 ECHR in the context of a leave curtailment. The case is Tikka v Secretary of State for the Home Department [2018] EWCA Civ 632.

The Court of Appeal found that the suitability test applicable in entry clearance and leave to remain cases when the applicant has “caused serious harm” is the same. It went on to state that there is no point in requiring an appellant who has always legally resided in the UK to leave the country and apply for entry clearance if his leave is curtailed in order to assess his Article 8 rights.

Conviction over fatal accident while driving uninsured

The appellant Mr Tikka is a Pakistani national, and a Muslim. He entered the UK as a student and later married a British national, Ms Rajoria, who is a Hindu. Mr Tikka’s application for leave to remain as a spouse was refused and he appealed.

In the meantime, Mr Tikka was involved in a road traffic accident whilst delivering food for a takeaway. The accident resulted in a man being killed. As Mr Tikka’s insurance did not cover the use of the car for work, he was prosecuted for causing the death of another person by driving a motor vehicle whilst uninsured and sentenced to 180 hours unpaid work.

Mr Tikka’s appeal against the refusal of his spouse visa was allowed and the Home Office granted leave but, because of the driving offence, on the same day curtailed it under paragraphs 322(5) and (5A) and 323(i) of the Immigration Rules, claiming that the applicant had caused “serious harm”.

Free-standing Article 8 argument successful at the First-Tier Tribunal

Mr Tikka appealed against the curtailment of leave, saying that the decision was contrary to the Immigration Rules and breached Article 8. He argued that it would be unreasonable to expect Ms Rajoria to relocate to Pakistan because interfaith marriages are not recognised in that country and the couple would be treated as being unmarried, thereby committing a criminal offence if they lived together. It was also argued that Ms Rajoria could not relocate to Pakistan due to her medical conditions.

The first grounds failed, but Mr Tikka was successful on the free-standing Article 8 ground.

Judge Law found that:

the marriage that had taken place would, in effect, be destroyed by the operation of [the Appellant’s] removal” and “the separation of the parties [would not be] proportionate… because of the inability of the Appellant’s wife to travel to Pakistan.

The Upper Tribunal proceedings: temporary vs permanent separation

The Secretary of State appealed and in due course Upper Tribunal Judge Birrell set aside the initial determination and remade the decision, dismissing Mr Tikka’s appeal on all grounds.

The Upper Tribunal found that Ms Rajoria could not reasonably relocate to Pakistan due to the interfaith marriage, and noted the mitigating circumstances surrounding Mr Tikka’s offence. But it concluded that the appellant’s removal would not be disproportionate because the couple’s separation would be temporary, whilst Mr Tikka applies for entry clearance as a spouse.

This conclusion was based on the tribunal’s view that the “serious harm” test in paragraph 322(5A) of the Immigration Rules differs from the suitability test applicable in entry clearance cases.

Having considered that in Sabir (Appendix FM – EX.1 not free standing) [2014] UKUT 63 (IAC) it was held that “the likelihood or otherwise of being able to meet the requirements of the rules for entry clearance is not a relevant consideration” the tribunal did not speculate on how the different test would be applied by the Secretary of State in Mr Tikka’s entry clearance application.

Suitability tests for entry clearance and leave to remain are the same

Mr Tikka successfully argued that the Upper Tribunal erred in considering that the suitability test in entry clearance and in-country applications is different.

Paragraphs S-EC.2.1 and 2.5 provide:

S-EC.2.1. The applicant will normally be refused on grounds of suitability if any of paragraphs S-EC.2.2. to 2.5. apply.

…

S-EC.2.5. The exclusion of the applicant from the UK is conducive to the public good because:

…

(b) in the view of the Secretary of State:

(i) the person’s offending has caused serious harm…

This test is not materially different from Paragraph 322 (5A) of the Immigration Rules, applicable to leave to remain applications, which states:

(5A) it is undesirable to permit the person concerned to enter or remain in the United Kingdom because, in the view of the Secretary of State:

1. their offending has caused serious harm…

Mr Tikka submitted that the Upper Tribunal erred in law in considering that his separation from his wife would only be temporary. He also argued that Sabir was not in play here because no speculation on what the Secretary of State would decide in an entry clearance application was required: the two suitability tests are the same and therefore any entry clearance application would be bound to fail.

Hickinbottom LJ found that UTJ Birrell had erred in considering Mr Tikka’s separation from his wife as temporary:

in the sense that he would be able to make an application to re-enter which would be dealt with by the Secretary of State on its merits. In fact, the relevant issue on that application has already been determined by the Secretary of State, adverse to the Appellant; so that, subject to the right of appeal, the separation would be permanent.

In the court’s view, looking at whether the Secretary of State has valid reason for requiring Mr Tikka’s application to be made from abroad, is an “over-analysis, or at least over-complication, of an issue”.

Mr Tikka had leave to enter and remain throughout his stay in the UK and therefore:

the strong public interest in requiring those who enter the United Kingdom to have entry clearance before doing so – to avoid, amongst other things, queue-jumping – has no place in the Appellant’s case.

The balancing exercise required by Article 8 would therefore focus on whether a permanent separation between Mr Tikka and his wife is justified, and it would be best to determine it whilst Mr Tikka is in the UK and able to give live evidence at the tribunal, as expressed by Lord Brown in Chickwamba. The case was accordingly remitted  to the Upper Tribunal.

How does this decision impact on other cases?

The case may be of use to practitioners for its analysis of the (lack of) public interest in requiring applicants who have legally resided in the UK to leave the country if their leave is curtailed, in order to have their Article 8 claim assessed.

The court was clear in stating that even a temporary separation pending an application to re-enter would not be proportionate where the applicant is not unlawfully present in the UK. This conclusion sits well with authorities such as Chikwamba, MA (Pakistan) and Hayat. If there is no issue of “queue-jumping” the Home Office has no reason to require that an application be made from abroad.