‘What’s the point in going back?’

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
18 May 2023

We represented an American national who made an in country application for leave to remain under the Immigration Rules by reason of her family and private life in the UK. The Home Office refused the application and the appeal was successful in May 2023. The appellant who entered the UK as a visitor and married a British national after her arrival. The application was made in country because of exceptional circumstances in this case, but the Home Office stated that the appellant could not meet the immigration status requirements and that there were no compelling circumstances, such that the decision to refuse her leave to remain with her British husband would amount to a disproportionate interference with her Article 8 rights, outside the Rules.

The current Immigration Rules are not a complete code for claims brought under Article 8 of the ECHR and therefore the Tribunal is required to undertake a two stage assessment. First to assess whether the decision under appeal was in accordance with the Immigration Rules, and second to assess whether the decision was contrary to the appellant’s Article 8 rights. To succeed under Article 8 outside the Rules, the appellant needs to show that the consequences of the decision would cause very substantial difficulties or exceptional circumstances or unjustifiable harshness.

In order to establish family life for the purpose of Article 8 it is necessary to show that there is a real committed or effective support or relationship between family members. At the hearing the appellant gave evidence and her husband and other witnesses also attended. The appellant was considered to be a vulnerable witness and it was not in dispute that the appellant could not meet the Immigration requirements of Appendix FM because she entered as a visitor with permission to stay only as a visitor and therefore at the time of the application she could not switch in country to the category of a spouse visa. However, having demonstrated that the appellant had a family life within the UK with her husband, the Judge found that the interference with her family life would have consequences of such gravity as potentially to engage the operation of Article 8 and despite the fact that the appellant has lived the majority of her life in the United States, understood the culture and the social expectations, it was her deteriorating physical and mental health that the Judge was satisfied that she would require assistance in the US and found both the appellant and her husband to be compelling and credible witnesses. The Judge was satisfied that to refuse the application would amount to an unlawful interference with her right to private and family life.

This case was moving and the report by Dr Parness, a psychologist, was particularly helpful in demonstrating insurmountable obstacles to family life continuing in the USA. In Chikwamba v SSHD [2008] Lord Brown considered the policy of requiring a spouse or a partner to return to their country to apply for entry clearance to apply to join their partner to settle in the UK. It held that in some cases to enforce an entry clearance requirement would be disproportionate, unless there is a sensible reason for doing so. In other words there was little point in the appellant returning to the USA just to make an entry clearance application, given that she satisfied the requirements of Article 8.