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Immigration Matters: Visitors who Attempt to Stay in the UK Permanently by Lucy Coen

Wed 6th May 2020

In the recent case of Younas (section 117B (6) (b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC) the Upper Tribunal made it clear that a visitor should not attempt to remain in the UK permanently, even when one becomes the parent of British citizen child.

The tribunal found that in balancing the UK government’s right to effective immigration control against the reasonableness of expecting a “qualifying child” to leave the UK, the length of time away from the UK and the likelihood that the child will re-enter the UK with their parent in the long term means the public interest in removal outweighs the Article 8 rights of the parent.

Background

The case concerned a woman of Pakistani nationality, who was born and brought up in the United Arab Emirates. She entered the UK in 2016 on a visitor visa – valid for six months. When she entered the UK she was pregnant, the father of the unborn child being her British citizen partner. Towards the expiry date of her visa the woman submitted an application to the Home Office for an extension of her visa, she claimed she was not able to travel due to the late stage of her pregnancy and being advised of risk due to a previous miscarriage. She requested a further six months leave. Her daughter was subsequently born and in 2018 she varied her application in order to apply for leave to remain on the basis of her family life in the UK; this application was refused by the Home Office and thus engaged Article 8 ECHR. The decision was appealed and found its way to the Upper Tribunal.

In essence the appellant argued that there was no public interest in removing her from the UK when she would be able to successful apply for entry clearance as a partner if she were outside of the UK as per the principle in the House of Lords case, Chikwamba v Secretary of State for the Home Department [2008] UKHL 40.

Further, if the appellant was removed from the UK, on the facts of this case, her British citizen child would be compelled to go with her to Pakistan, and as it was not reasonable to expect the child to leave the UK, there was no public interest in removing the appellant as per section 117B (6) (b) of Part 5A of the Nationality, Immigration and Asylum Act 2002.

The appellant advanced that she had no family ties in Pakistan, having only had a connection with any extended family there through her mother, who was now deceased. Additionally, she and her child would face extreme difficulty if she had to return to Pakistan, having never lived there.

Moreover, if the child were compelled to leave the UK to a third country, outside of the European Union, this would deprive the child of the genuine enjoyment of her European Union Citizenship rights as per Ruiz Zambrano v Office national de l’emploi (Case C-34/09) and recently clarified in Patel v Secretary of State for the Home Department [2019] UKSC 59.

The respondent argued that the appellant could travel to Pakistan for a limited time period and apply for entry clearance as a partner and that her temporary removal was in the public interest as per section 117B (1) of Part 5A of the Nationality, Immigration and Asylum Act 2002; the maintenance of effective immigration control.

It was for the tribunal to balance the competing interests of the state and the appellant in making a determination on the appeal.

What did the court decide?

The Upper Tribunal found that the appellant’s intention had always been to remain in the UK permanently despite arriving on a visitor visa, that she could return to Pakistan with her daughter and assimilate given she had been brought up in a Pakistani family and within the Pakistani community in Dubai, and that once in Pakistan she could gather the necessary evidence and apply for entry clearance. It estimated that in total she would be out of the UK for between 4 to 9 months.

Importantly the tribunal found that the appellant had fallen foul of the eligibility criteria in the immigration rules for leave to remain as a partner by applying when she had section 3C leave as visitor (E-LTRP.2.1). If she had applied without leave as “overstayer” she would have been able to rely on the exception set out in EX.1(b) of Appendix FM.

The tribunal also found that the argument advanced by the appellant in line with Chikwamba, as set out above, misunderstood the principles in the case. They found that Lord Brown in Chikwamba had undertaken a “detailed consideration of the individual and particular circumstances of the appellant” [para 85] and “that the case does not stand for the proposition that it is sufficient, in order to resist removal under article 8 ECHR, for an appellant to show that he or she would succeed in an entry clearance application” [86]. The court also had to consider the public interest requirements as set out in Part 5A section 117B of the Nationality, Immigration and Asylum Act 2002.

The impact on the applicant’s Article 8 rights if removed had to be weighed against the public interest in removal as a part of the overall proportionality assessment and it found that the her removal to Pakistan to make an entry clearance application was proportionate in the circumstances of this case.

When considering whether it was reasonable to expect the child to leave the UK, the tribunal followed KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53  in that it must assess the real circumstances of the child in deciding whether removal is unreasonable. Ultimately, the tribunal found that due to the age of child and that the removal would be temporary and not indefinite, removal was not unreasonable. It further concluded that whilst the child is compelled to leave the territory of the European Union any deprivation of her treaty rights are theoretical given the temporary nature of her removal and her age. As such the appeal was dismissed.

Key principles

This case highlights;

  • The inherent difficulties in attempting to apply to remain in the UK as a family member of British citizens whilst in the UK as a visitor.
  • The need to demonstrate to the tribunal the genuine intention to be a visitor, evidencing how and why circumstances have changed since arriving as a visitor.
  • The weight given to the public interest in maintaining effective immigration control.
  • That the case of Chikwamba does not override the public interest considerations in Part 5A of the NIIA 2002.
  • That even if the best interests of a British/qualifying child are to remain in the UK, removal will not be considered unreasonable if for a temporary period and the facts of the case mean a temporary removal will not be overtly detrimental to the child.
Lucy Coen
6 May 2020

 

 

 

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