A common scenario is where the applicant is an overstayer but has established a relationship with a partner who is settled in the UK. The first question I am regularly asked is; should an application be made from within or outside the UK. Before advising clients as to which route they should take, it is crucial to consider factors that may count in favour or against each avenue. This can be overwhelming for clients and it is incumbent on advisors to filter out the most salient points. Issues that are raised time and time again are: Chikwamba (2008), Article 8 of the ECHR and Appendix FM of the Immigration rules. The following seeks to briefly explore these issues and how they can affect a partner / spouse application from both within and from outside the UK.
In country application
The leading case and of foremost consideration for such applicants is Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 (25 June 2008); the House of Lords held that it would, likely, be disproportionate in a family case to require a person to leave the UK simply to re-apply from abroad, for no other reason than that this was the normal procedure set out in the rules. Put another way, the absence of leave should not, on its own, lead to a refusal where the applicant would likely satisfy the relevant entry clearance conditions. Chikwamba was heralded as a strike for common sense and affirmed in subsequent cases. Sadly, in the decade since this 2008 case, the Home Office has continued to refuse cases that arguably fall within Chikwamba.
Another consideration outside Chikwamba is Article 8 (protection of a person’s private and family life) of the European Convention of Human Rights (ECHR) both ‘within’ and outside the Immigration Rules. Here, the applicant is required to show that there are ‘insurmountable obstacles’ to his/her family life continuing outside the UK to succeed with his/her application ‘within’ the Rules. ‘Insurmountable obstacles’ are defined as “very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”
The erosion of the principle established in Chikwamba and the combative approach the Home Office appear to take on anything with a whiff of a Human Rights claim has led to unnecessary refusals and appeals. The practical consequences of increased costs, stress and delay have often resulted in clients looking at the alternative to making an in-country application, namely leaving the UK and pursuing an application from their home country.
“Out country” applications
As the phrase states, the applicant will leave the UK and pursue his/her application from abroad, often his/her home country. Appendix FM of the Immigration Rules provides routes to entry clearance based on family life, such as that of a spouse or partner. The section lists several conditions including that the sponsoring partner has an income of no less than £18,600 (more if there are children applicants). The advantage of this route is that it provides applicants with more clarity and if you satisfy the requirements then you should be granted leave to enter the UK, or so you would think. Beware that applicants who have been in breach of their immigration condition(s) in the UK may be refused leave under Paragraph 320(11) of the Immigration Rules. This provides a general power to the Home Office to refuse leave on the basis that the applicants are deemed unsuitable, due to their previous breach of immigration rules. This is a discretionary ground for refusal, which means that an application can be refused but it does not mean that it will be refused.
Paragraph 320(11) provides: “where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by:
(i) overstaying; or
(ii) breaching a condition attached to his leave; or
(iii) being an illegal entrant; or
(iv) using deception in an application for entry clearance, leave to enter or remain or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not);
and there are other aggravating circumstances, such as absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re-documentation process.”
As can be noted the applicability of S320(11) can be wide ranging. The phrase “catch all” comes to mind. A refusal on this basis will usually raise a right of appeal and subject to pursuing this the matter it will then be considered by an Immigration Tribunal Judge. Aside from the costs of pursuing an appeal, the most difficult factor parties often raise is the emotional toll of separation. Appeals can take up to a year to be heard and that can be very difficult for parties, sometimes leading to a breakdown of relationship.
The “moral” from the above is that, whichever route an applicant decides to take, careful consideration must be given beyond what is noted in the Immigration Rules. Remember it is not for the Home Office to ask for information or documents, the burden is on you to prove your case. As facts differ from case to case, the decision of whether to pursue an application from abroad or within the UK will depend on various factors and applicant’s priorities so ensure that you make an informed decision and obtain good legal advice.