Finally, I have managed to upload this site, which has long been in the making. I had thought that being an immigration direct access barrister would lead to additional work, I had not quite realised how much! Long may the direct access work continue though.
Last week saw the handing down of the decision of
R on the application of Hayat and Treebhowan  EWCA Civ 1054 v SSHD.
This case, which involved my appeal against the decision of the Upper Tribunal and the SSHD’s appeal against the decision of Upper Tribunal in the case of Hayat has important ramifications in respect of immigration appeals where the Appellant seeks to rely upon the Chikwamba principle that it would be unreasonable to make someone go home just to get entry clearance.
LJ Elias in paragraph 30 provided the following guidance, which in my view is both clear and very helpful:
In my judgment, the effect of these decisions can be summarised as follows:
- Where an applicant who does not have lawful entry clearance pursues an Article 8 claim, a dismissal of the claim on the procedural ground that the policy requires that the applicant should have made the application from his home state may (but not necessarily will) constitute a disruption of family or private life sufficient to engage Article 8, particularly where children are adversely affected.
b) Where Article 8 is engaged, it will be a disproportionate interference with family or private life to enforce such a policy unless, to use the language of Sullivan LJ, there is a sensible reason for doing so.
c) Whether it is sensible to enforce that policy will necessarily be fact sensitive; Lord Brown identified certain potentially relevant factors in Chikwamba. They will include the prospective length and degree of disruption of family life and whether other members of the family are settled in the UK.
d) Where Article 8 is engaged and there is no sensible reason for enforcing the policy, the decision maker should determine the Article 8 claim on its substantive merits, having regard to all material factors, notwithstanding that the applicant has no lawful entry clearance.
e) It will be a very rare case where it is appropriate for the Court of Appeal, having concluded that a lower tribunal has disproportionately interfered with Article 8 rights in enforcing the policy, to make the substantive Article 8 decision for itself. Chikwamba was such an exceptional case. Logically the court would have to be satisfied that there is only one proper answer to the Article 8 question before substituting its own finding on this factual question.
f) Nothing in Chikwamba was intended to alter the way the courts should approach substantive Article 8 issues as laid down in such well known cases as Razgar and Huang.
g) Although the cases do not say this in terms, in my judgment if the Secretary of State has no sensible reason for requiring the application to be made from the home state, the fact that he has failed to do so should not thereafter carry any weight in the substantive Article 8 balancing exercise.
I am of the view that this case is of great potential benefit in arguing article 8 appeals, particularly in the light of the new statement of changes to the Immigration Rules HC395 that came into effect on 9 July 2012.
Paul Turner is a highly regarded Immigration Barrister who is licensed by the Bar Council to undertake Direct Public Access work and is based at 10 King’s Bench Walk, Temple, EC4Y 7EB