Butt v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant ("Appellant") applied to the Secretary of State for leave to remain as a spouse on 4 May 2021 ("application 2"). The Secretary of State refused this application in a decision dated 30 December 2021 ("decision 2"). The Appellant appealed to the First-tier Tribunal (Immigration and Asylum Chamber) ("F-tT"), which allowed the appeal on 24 June 2022 ("determination 2"). The Secretary of State then appealed to the Upper Tribunal (Immigration and Asylum Chamber) ("UT") with leave. The UT, in a determination promulgated on 17 October 2023 ("determination 3"), held that the F-tT had erred in law and allowed the Secretary of State's appeal. The Appellant now appeals against determination 3 with permission granted by Arnold LJ.

Previously, the Appellant had made an earlier article 8 application ("application 1") in December 2016. The Secretary of State refused it in March 2018 ("decision 1"), and the F-tT dismissed the appeal against that refusal in October 2019 ("determination 1"). The F-tT found that the Appellant and his partner could relocate to Pakistan without insurmountable obstacles and that no exceptional circumstances existed to justify leave to remain in the UK.

In determination 2, the F-tT found that the Appellant and his partner faced insurmountable obstacles to continuing family life outside the UK and that requiring the Appellant to leave the UK to apply for entry clearance would be disproportionate, considering a potential lengthy separation. The Secretary of State appealed this finding to the UT, which set aside determination 2 and remitted the appeal for reconsideration.

Legal Issues Presented

1. Whether the UT erred in its application of the decision in Alam v Secretary of State for the Home Department [2023] EWCA Civ 30 to the Appellant’s case, particularly regarding the status and application of R (Chen) v Secretary of State for the Home Department [2015] UKUT 189 (IAC) ("Chen").
2. Whether the UT misunderstood the F-tT's reasoning concerning EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41.
3. Whether the UT erred in law by conflating the test for insurmountable obstacles under the Immigration Rules with the proportionality test concerning temporary separation outside the Rules, as clarified in Chikwamba.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the F-tT correctly applied Chikwamba in light of Alam, and that by the time of the F-tT hearing, this was effectively a Chikwamba case because one of the Secretary of State’s reasons for refusal had fallen away.
• The Appellant argued that the UT misunderstood the application of EB (Kosovo) and that the F-tT was entitled to rely on its statements regarding delay and impact on article 8 rights.
• The Appellant submitted that removal could be disproportionate even if no insurmountable obstacles existed, relying on Chen to support this point.
• The Appellant acknowledged the F-tT did not expressly apply the test of unjustifiable harshness but argued it was aware of it, as indicated by references to relevant case law.
• The Appellant maintained that a freestanding proportionality assessment outside the Rules was permissible and that the scheme has flexibility to accommodate exceptional circumstances.

Secretary of State's Arguments

• The Secretary of State relied on a Respondent’s Notice with two additional reasons to uphold determination 3: the F-tT ignored a material consideration required by section 117B(4)(b) of the Nationality, Immigration and Asylum Act 2002, and failed to consider whether exceptional circumstances made refusal unjustifiably harsh under the Immigration Rules.
• The Secretary of State argued that the F-tT erred in law by treating the points in EB (Kosovo) as countering statutory provisions, which was impermissible.
• The Secretary of State contended that the F-tT failed to consider that the Appellant’s partner could be expected to move to Pakistan, undermining the proportionality assessment.
• It was submitted that the F-tT improperly speculated on hypothetical issues related to entry clearance applications, contrary to the principle that Chikwamba applies only where entry clearance is certain.
• The Secretary of State emphasized that the Rules now provide a comprehensive code for article 8 cases, requiring individual assessments and that compelling reasons are necessary to outweigh the public interest in removal.
• The Secretary of State maintained that the Appellant’s poor immigration history and lack of status warranted removal and that any delay was minimal and did not justify overriding statutory provisions.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by summarizing the relevant authorities, focusing on the narrow application of Chikwamba as clarified in Alam. It held that the F-tT erred in law by broadly applying Chikwamba without a full article 8 assessment and by failing to anticipate developments in the law, including the statutory framework introduced by the Nationality, Immigration and Asylum Act 2002 and the Immigration Rules.

The court identified four principal errors in the F-tT's determination 2:

1. The F-tT found no insurmountable obstacles to family life in Pakistan but failed to give this factor appropriate weight in the article 8 balance.
2. The F-tT neglected to decide on the agreed issue of whether exceptional circumstances existed that would make refusal unjustifiably harsh under paragraph GEN.3.2 of the Rules.
3. The F-tT improperly allowed EB (Kosovo) to "counter" the statutory provision in section 117B(4), thereby giving undue weight to delay and the impact of the Appellant's unlawful status.
4. The F-tT erroneously treated the refusal of leave to remain as effectively requiring the Appellant to leave the UK and apply for entry clearance abroad, contrary to the clarified legal position in Alam.

The court also rejected the Appellant's argument that decision 2 amounted in substance to a requirement to leave and apply for entry clearance, emphasizing that such a requirement must be explicit and that the strength of the article 8 claim must be assessed in all cases.

The court accepted the Secretary of State's submissions that the F-tT failed to apply the statutory test in a structured and reasoned manner, including neglecting to consider whether the Appellant's partner could reasonably be expected to relocate to Pakistan. Speculation about hypothetical issues relating to entry clearance applications was deemed inappropriate.

Ultimately, the court concluded that the UT was correct to allow the Secretary of State's appeal and to remit the case to the F-tT for reconsideration in accordance with the correct legal principles and statutory framework.

Holding and Implications

The court DISMISSED the Appellant’s appeal against the Upper Tribunal’s determination. It upheld the UT's decision that the First-tier Tribunal erred in law in its assessment of the appeal against the Secretary of State’s refusal of leave to remain.

The direct effect of this decision is that the appeal is remitted to the First-tier Tribunal for reconsideration consistent with the legal framework and analysis set out by the Upper Tribunal and this court. No new precedent was established beyond the application and clarification of existing case law and statutory provisions as previously set out in Alam and related authorities.