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Is Chikwamba still relevant?


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Yes, although only in very limited circumstances. This was the conclusion of the Court of Appeal in Alam & Anor v Secretary of State for the Home Department [2023] EWCA Civ 30.

For those who don’t know, the House of Lords held in Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 that only rarely will it be appropriate to dismiss an article 8 appeal on the ground that the appellant should apply for entry clearance from abroad.

After 15 years of legislative changes and case law, this is no longer true. In Alam Lady Justice Elisabeth Laing held that:

Chikwamba does not state any general rule of law which would bind a court or tribunal now in its approach to all cases in which an applicant who has no right to be in the United Kingdom applies to stay here on the basis of his article 8 rights. In my judgment, Chikwamba decides that, on the facts of that appellant’s case, it was disproportionate for the Secretary of State to insist on her policy that an applicant should leave the United Kingdom and apply for entry clearance from Zimbabwe.”

All Chikwamba and the subsequent case law says is that if an application for entry clearance is certain to succeed, removal might be disproportionate. It is too far to suggest that when an appellant is certain to get entry clearance, the public interest does not require their removal. It is simply one potentially relevant factor.

A similar conclusion was reached by the Upper Tribunal back in 2020 in a case called Younas (section 117B(6)(b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC). You can read more about this case here. In Alam, the Court of Appeal suggests that the approach in Younas was correct.

When is Chikwamba relevant?

The court makes clear that:

Chikwamba is only relevant when an application for leave is refused on the narrow procedural ground that the applicant must leave and apply for entry clearance, and that, even then, a full analysis of the article 8 claim is necessary.”

Essentially this means that the Home Office accepted that the relationship, English language, and financial requirements of Appendix FM are satisfied, but refused the application on the basis that the immigration status requirement was not met (e.g. because the applicant is a visitor, overstayer, or illegal entrant). In the appeals before the court, the Home Office had not refused the applications on this basis. Chikwamba was therefore irrelevant.

The court does not tell us what happens when, between the refusal and the appeal hearing, the appellant’s circumstances change. For instance, they did not meet the financial requirement at the date of application, but do meet it at the date of the appeal hearing. Is Chikwamba relevant then?

If the passage above is read literally, then the answer is no. The Court of Appeal suggests that the focus should be on the reason for refusal. In my view, this must extend to the Home Office’s reasons for resisting the appeal. These may be different to the reasons for refusal because circumstances can change between refusal and appeal hearing. The Tribunal must assess the article 8 claim based on the facts and circumstances as at the date of the hearing (Huang v Secretary of State for the Home Department [2007] UKHL 11). It would be artificial to focus on the reasons for refusal where the facts and circumstances have changed.

When might removal be disproportionate?

In Younas the Upper Tribunal set out four questions to be asked and answered when considering whether removal, in order to apply for entry clearance, would be disproportionate.

First, is temporary removal sufficient to engage article 8? If a couple would be forced to separate the answer to this question is likely to be yes. This will usually be the case as the British citizen must remain in the UK and continue working to meet the financial requirement.

At the time of writing, people need to wait around 6 months for their entry clearance application to be granted. This is a significant length of time to be separated from your partner.  

Second, will an application for entry clearance from abroad be granted? If all of the necessary evidence of the relationship, financial, and English language requirements has been provided (or the Home Office accepts these requirements are met) the answer to this question is likely to be yes.

Third, how much weight should be attached to public interest. It is clear, from both Younas and Alam, that there will be significant public interest in requiring an application to be made from abroad where the appellant has lied about their intention when applying for a visit visa. In Mr Alam’s case the Tribunal referred to his “blatant disregard” for the undertaking he had given to the Entry Clearance Officer when coming to the UK. Such behaviour “undermines the immigration system and creates a mistrust of genuine visitors”. Both the Upper Tribunal and the Court of Appeal upheld that decision.

It isn’t quite so clear cut when a non-visa national has entered as a visitor at the border. Whether they have deceived the Home Office will depend on what they told the immigration officer at the border. In my view, the weight that should be given to public interest is even lower when the person has entered through an e-gate and has never been told that they cannot make an in-country application to remain permanently. Delay in enforcing immigration control can also reduce the weight to be given to public interest. 

Fourth, is removal proportionate? Alam states, “a full analysis of the article 8 claim is necessary”. This includes having regard to the public interest considerations in Part 5A of the 2002 Act. Chikwamba was decided before these provisions were introduced. Courts and tribunals must now have regard to the consideration that little weight should be given to a relationship which is formed with a qualifying partner when the applicant is in the UK unlawfully.

This makes it more difficult, but not impossible, to demonstrate that temporary separation would be disproportionate. Little weight does not mean no weight. Medical issues or conditions in the country of return may be sufficient to tip the balance.

Although, if permanent relocation is proportionate (i.e. because there are no insurmountable obstacles to family life continuing outside the UK), then temporary relocation is likely to be proportionate. This raises the question of whether a Chikwamba argument really adds anything to the assessment. 

Where there is a child involved, removal will be disproportionate if it would not be reasonable to expect the child to leave the UK temporarily (per section 117B(6) and Younas).

As is always the case with article 8 claims, it will all depend on the facts. However the Upper Tribunal, and now the Court of Appeal, have made it crystal clear that an ability to return to the UK with entry clearance is no longer enough to save an otherwise weak claim.

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Iain Halliday

Iain Halliday is an Advocate (the Scottish equivalent of a Barrister) at Themis Advocates. He specialises in public law, including immigration and asylum, retained EU law, human rights, and judicial review.