West Law Report

Policy is disproportionate

Posted in House of Lords (case), Times Law Report by mrkooenglish on June 29, 2008

From The TimesJune 26, 2008

Policy is disproportionate
House of Lords
Published June 26, 2008
Chikwamba v Secretary of State for the Home Department
Before Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood
Speeches June 25, 2008

An appeal based on the right to family life against a refusal of asylum and leave to enter should not be dismissed routinely because policy required the appellant to leave the country to apply for entry clearance abroad.

The House of Lords allowed an appeal by Mrs Sylvia Chikwamba, a Zimbabwean national, from dismissals by the Court of Appeal (Lord Justice Auld, Lord Justice Jonathan Parker and Lord Justice Lloyd) ([2005] EWCA Civ 1779), an Immigration Appeal Tribunal and an adjudicator, of her appeals against refusal of asylum.

She arrived in the United Kingdom in April 2002 and in September 2002 married a Zimbabwean national who had been granted asylum. They had a daughter born on April 14, 2004.

Mr Michael Fordham, QC and Mr Raza Husain for Mrs Chikwamba; Miss Monica Carss-Frisk, QC and Mr Steven Kovats for the Home Secretary.

LORD BROWN referred to the policy of the Home Secretary on claims based on article 8 of the European Convention on Human Rights, guaranteeing the right to family life, that required Mrs Chikwamba to be separated from her husband, and their child from her father and regarded that temporary interference with their family life as proportionate.

Was the policy as a whole legitimate and proportionate? It seemed to his Lordship that, rather than it being routinely applied in all but exceptional cases, only comparatively rarely should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad.

As to the facts of the present case, was it really to be said that effective immigration control required that Mrs Chikwamba and her child must first travel back, perhaps at the taxpayer’s expense, to Zimbabwe, where, as accepted below, conditions were harsh and unpalatable, and remain there for some months obtaining entry clearance before finally she could return, at her own expense, to resume her family life which meantime would have been gravely disrupted?

One only had to ask the question to recognise the right answer. His Lordship would hold that to remove her to Zimbabwe would violate her and her family’s article 8 rights.

Lord Bingham and Lord Hope agreed; Lord Scott and Lady Hale delivered concurring opinions.

Solicitors: The Rights Partnership, Birmingham; Treasury Solicitor.

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