In a useful case the Upper Tribunal addresses one of the “mind the gap” differences between the Immigration Rules and the requirements of human rights law. There is a growing body of case law that recognises that the two bodies of law are not, contrary to the Home Office position, coterminous. The latest is R (on the application of Chen) v Secretary of State for the Home Department) (Appendix FM – Chikwamba – temporary separation – proportionality) IJR [2015] UKUT 189 (IAC) on, you guessed it, the House of Lords case of Chikwamba and the proportionality of having to travel abroad in order to apply from abroad.

The recognition that the rules are not the whole story seems not yet to be universal. See, for example, Chege (section 117D : Article 8 : approach : Kenya) [2015] UKUT 165 (IAC) and the Free Movement write up.

The headnote for Chen reads:

(i) Appendix FM does not include consideration of the question whether it would be disproportionate to expect an individual to return to his home country to make an entry clearance application to re-join family members in the U.K. There may be cases in which there are no insurmountable obstacles to family life being enjoyed outside the U.K. but where temporary separation to enable an individual to make an application for entry clearance may be disproportionate. In all cases, it will be for the individual to place before the Secretary of State evidence that such temporary separation will interfere disproportionately with protected rights. It will not be enough to rely solely upon the case-law concerning Chikwamba v SSHD [2008] UKHL 40.

(ii) Lord Brown was not laying down a legal test when he suggested in Chikwamba that requiring a claimant to make an application for entry clearance would only “comparatively rarely” be proportionate in a case involving children (per Burnett J, as he then was, in R (Kotecha and Das) v SSHD [2011] EWHC 2070 (Admin).

(iii) In an application for leave on the basis of an Article 8 claim, the Secretary of State is not obliged to consider whether an application for entry clearance (if one were to be made) will be successful. Accordingly, her silence on this issue does not mean that it is accepted that the requirements for entry clearance to be granted are satisfied.

(iv) In cases where the Immigration Rules (the “IRs”) do not fully address an Article 8 claim so that it is necessary (pursuant to R (Nagre)) to consider the claim outside the IRs, a failure by the decision maker to consider Article 8 outside the IRs will only render the decision unlawful if the claimant in fact shows that there has been (or, in a permission application, arguably has been) a substantive breach of his or her rights under Article 8.

None of this was to avail the applicants, though. Ms Chen had entered the UK in 2007 as a student, her leave had expired in 2009 but she had remained and overstayed, she had met her now husband in 2008 and their relationship began in 2010 before getting married in 2012. The rules prevented her from making an application from within the UK for leave to remain as a spouse because of her lack of immigration status unless she could show there were “insurmountable obstacles” to living with her husband abroad. Her claim was that there might not be “insurmountable obstacles” to their living abroad but it was nevertheless disproportionate to expect her to travel abroad in order simply to apply and return: it was inconvenient, expensive and served no useful purpose. On the judge’s findings, she had presented no evidence as to why that might be the case nor that she actually met the requirements of the Immigration Rules but for her immigration status. The application for judicial review therefore failed.

Other cases can and should succeed on these grounds, though, if good reason is put forward with supporting evidence. Home Office refusal of such applications is almost inevitable but an appeal (a new style human rights appeal, of course) may be worthwhile.

A recent case of mine springs to mind. It involved a wealthy couple who had spent many years happily living between their two countries and in third countries. There was a long and impeccable immigration history. In one of their short intervals apart, while the foreign national wife was abroad in her home country, the husband had fallen, hurt himself badly, been hospitalised and ultimately ended up wheelchair-bound. The wife entered the UK immediately on her visit visa to come and see him and look after him. His 24 hour care needs were such that their days of international travel were over, so she made an application from within the UK for leave to remain as a spouse.

Common sense and humanity would dictate that an exception to the rules be made, but these qualities are utterly absent from Home Office decision making. The application was refused.

On appeal to the First-tier Tribunal the Home Office Presenting Officer argued that the husband should have been placed in respite care for the unknown time it would take the wife to apply as a spouse from abroad. The appeal succeeded, the judge being quite horrified by the Home Office position, but it did not end there. The Home Office appealed, reiterating the argument that respite care should be used. The Home Office appeal was eventually dismissed in the Upper Tribunal and the visa issued, but not before a lot of utterly unnecessary expense and stress for the couple.