“there could therefore conceivably be cases where there were no insurmountable obstacles to the continuation of family life outside the UK, but the requirement to return to the applicant’s country of origin to make an application for leave to remain outside the Immigration Rules would be a disproportionate interference with their Article 8 rights.”
“EX.1. This paragraph applies if (a) (i) the applicant has a genuine and subsisting parental relationship with a child who- (aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied; (bb) is in the UK; (cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and (ii) it would not be reasonable to expect the child to leave the UK; or (b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.”
“In this case it has to be accepted that the applicant would be unable to argue that there are “insurmountable obstacles” (as defined by case law) to returning to China to apply for entry clearance. The applicant however argues that it not necessary or justified and therefore disproportionate underArticle 8 ECHR principles.”
“…the new rules do provide better explicit coverage of the factors identified in case-law as relevant to analysis of claims under Article 8 than was formerly the position, so in many cases the main points for consideration in relation to Article 8 will be addressed by decision-makers applying the new rules. It is only if, after doing that, there remains an arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8 that it will be necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under the new rules to require the grant of such leave.”
“30. … if, after the process of applying the new rules and finding that the claim for leave to remain under them fails, the relevant official or tribunal judge considers it is clear that the consideration under the Rules has fully addressed any family life or private life issues arising under Article 8, it would be sufficient simply to say that; they would not have to go on, in addition, to consider the case separately from the Rules. If there is no arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8, there would be no point in introducing full separate consideration of Article 8 again after having reached a decision on application of the Rules.”
“64. … there is no need to conduct a full separate examination of article 8 outside the Rules where, in the circumstances of a particular case, all the issues have been addressed in the consideration under the Rules.”
“37. …in Mr Mandalia's submissions it is accepted that the Chikwamba point is one of those potential issues relating to proportionality which is not covered by the drafting of the Rules but which nonetheless if it arises, as it does in this case, will need to be considered when the defendant assesses whether or not, as an exercise of residual discretion outside the Rules, allowing leave might be appropriate. There could therefore conceivably be cases where there were no insurmountable obstacles to the continuation of family life outside the UK, but the requirement to return to the applicant's country of origin to make an application for leave to enter the UK would be a disproportionate interference with their Article 8 rights. So much is, in effect, the submission made on behalf of the defendant by Mr Mandalia.”
"It may at first blush seem odd that Article 8 rights may be infringed by an unjustified insistence that the applicant should return home to make the application [for entry clearance], even though a subsequent decision to refuse the application on the merits will not. The reason is that once there is an interference with family or private life, the decision maker must justify that interference. Where what is relied upon is an insistence on complying with formal procedures that may be insufficient to justify even a temporary disruption to family life. By contrast, a full consideration of the merits may readily identify features which justify a refusal to grant leave to remain."
“30 In my judgment, the effect of these decisions can be summarised as follows: 33. a) 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. 34. 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. 35. 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. 36. 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. 37. 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. 38. 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. 39. 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.”
“13. In my judgment the issue is whether the Secretary of State's decision, which is to the effect that this case does not possess exceptional features, is a decision which is Wednesbury unreasonable. The Secretary of State has at least grappled with the issue. Chikwamba appears to have turned on its own particular facts. The Court of Appeal in Hayat noted that it was an exceptional case. In the circumstances of that case there was no sensible reason to require Mr Chikwamba to return to Harare in Zimbabwe and make an application from that jurisdiction.”
“…it is only in “exceptional” or “the most exceptional circumstances” that removal of the non-national family member will constitute a violation of article 8. In our view, that is not to say that a test of exceptionality is being applied. Rather it is that, in approaching the question of whether removal is a proportionate interference with an individual’s article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be “exceptional”) is required to outweigh the public interest in removal. In our view, it is no coincidence that the phrase “exceptional circumstances” is used in the new rules in the context of weighing the competing factors for and against deportation of foreign criminals.” ii) Although MF (Nigeria) was a deportation case, there is no reason to think that the use of the word “exceptional” or the phrase “exceptional circumstances” outside the IRs in non-deportation cases means that the test of exceptionality is being applied contrary to Huang, especially given that: a) Strasbourg case-law indicates that, where family life is established when the immigration status of the claimant is precarious, removal will be disproportionate only in “exceptional cases” (Nagre at (41)); and b) the guidance applied by the case-workers in assessing Article 8 claims outside the IRs defines “exceptional” as follows (Nagre at para 14): ““Exceptional” does not mean “unusual” or “unique”
“48. In suggesting that the course proposed by the Secretary of State [of requiring a claimant to make an application for entry clearance from his or her home country] would only 'comparatively rarely' be proportionate in a case involving children I do not understand Lord Brown to be laying down a legal test. Rather, he was expressing the expectation of the Committee that, having undertaken the careful evaluation explained on the same day in EB (Kosovo), the balance on proportionality would fall in favour of the individual in cases such as Chikwamba. Put differently, such cases would fall within the minority envisaged by the House of Lords in Huang, or more generally the exceptions referred to in the Strasbourg Court, in which article 8 would provide an obstacle to removal.”
“74. Counsel for the Secretary of State referred to a number of cases in an effort to persuade the court that, in the face of repeated authoritative pronouncements to the contrary, it was still only in exceptional (or a small minority) of cases that Article 8 would frustrate the requirement that an applicant should leave the country before making an application. Despite his strenuous efforts to extract some forensic crumbs of comfort from a number of the fifty or more cases in which Chikwamba has been recently considered none of these could bear the weight of the his argument. Conclusion on requirement (h)(i) 77. I, therefore, come to the clear view that save in particular cases (such as those involving a poor immigration record – as in Ekinci v Secretary of State for the Home Department[2003] EWCA Civ 765 or where the engagement of Article 8 is very tenuous - as in R (Mdlovu) v Secretary of State for the Home Department[2008] EWHC 2089 ) it will be rare indeed that the immigration priorities of the state are such as to give rise to a proportionate answer to Article 8 rights to family life where requirement (h)(i) is engaged. 1. It must follow from this that the application of the blanket requirement to leave the country imposed by paragraph 319C(h)(i) of the immigration rules is unsustainable. It is simply not consistent with the ratio of the decision in Chikwamba that this paragraph, as presently worded, should continue to form part of the rules. I am not prepared, however, to make a formal declaration on the matter. It is not the function of the court to redraft the rules but I would predict that the Secretary of State would in future face difficulties in enforcing requirement (h)(i) as presently worded in all but a small number of cases in which Article 8 is engaged.”
“Where a person seeks leave to remain, relying on private life or family life or both, and relying on Article 8, and where the claim fails at the first stage by reference to the applicable Immigration Rules (Appendix FM and Rule 276ADE): (1) There is always a "second stage" in which the Secretary of State must consider the exercise of discretion outside the Rules and must be in a position to demonstrate that she has done so. (2) The extent of that consideration and the extent of the reasoning called for will depend on the nature and circumstances of the individual case. (3) In a case in which the consideration or reasoning is legally inadequate, and leaving aside cases in which there is a right of appeal to a tribunal, it is open to the Secretary of State to resist the grant of judicial review if she is able to demonstrate that the decision would inevitably have been the same.”