In a recent reported decision in KH (Pakistan) and AT (Mauritius) v SSHD, [2012] EWCA Civ 1054, the Court of Appeal restricted the principle established by the House of Lords in Chikwamba regarding legality of insisting on an out-of-country application where all other requirements for entry are met.
The leading judgment was delivered Elias LJ, who took restrictive view on the concept of private and family life in the context of migrants not settled in the UK. In the Pakistan case, it was found that temporary separation of a newly wed couple, where the wife was lawfully pursuing a course of studies as a Tier 4 migrant and the husband did not have the right entry clearance to switch into Tier 4 dependant category, did not engage the Chikwamba principle because the couple had no legitimate expectation of being entitled to assert the right of staying together, and because their separation would not be for any considerable length of time. The Court of Appeal upheld the decision of the First-tier tribunal in that Article 8 was not engaged and therefore Chikwamba did not apply.
In Mauritius case the appellant appealed against the decision refusing to switch his status from Tier 4 dependant to Tier 4 student. The immigration rules do not permit this switch between the categories. The argument was made in reliance on Chikwamba in that insisting on a strict application of the requirement to apply for entry clearance from abroad did not serve public interest in any degree comparable to the disruption of private life to the individual affected by this requirement; as well as on reliance on Pankina and the concept of “near miss” where all, but applying from abroad, requirements had been met.
The Court of Appeal dismissed both arguments. The “near miss” argument was done away with by the same court in the case of Miah & Ors v SSHD [2012] EWCA Civ 261. The Chikwamba argument received a rather ingenious blow: the migrant was required to apply from abroad if he wished to pursue his studies in the UK, however, there was no “insistence” on an application from abroad. The migrant had the choice of moving to his country of origin permanently. That would spare him the inconvenience of applying for entry clearance.
It is open to speculation as to whether the Supreme Court would agree with this interpretation of Chikwamba. In any event, it will be a while before we have a chance to find out.
