Secretary of State for the Home Department v Hayat (31 July 2012)
The present case clarifies the use of the article 8 ECHR which offers a right to private life to all, in immigration law, specially in case where applicants saw their visa request refuses and are then supposed to go back to their country to make the application from there. In the present judgment both applicant saw their article 8 appeal refused, based on the fact that their private life would not be disproportionately affected by them having to return to their country.
In the first case, Mr H came to the UK with a student visa, which then was extended with a Tier 1 post study worker. In the meantime H got married. He then asked to extend his stay but it was refused saying that he had to go back to his country to have an entry clearance. Mr H appealed the decision based on article 8, right to private life, First Tier Tribunal dismissed the appeal, the appellant then moved the case to the Upper Tribunal, who allowed the article 8, right to private life, appeal on the reason that the applicant was supporting his wife studying in the UK. The SSHD brought that decision before the Court of Appeal.
In the second case, Mr T also came into the UK with a student visa, this stay was then extended with a spouse visa, his wife having a student visa. He and his wife then got separated. Mr T applied to extend his stay as a student but this was refused to him. Mr T appealed the decision based on the article 8, First Tier Tribunal and Upper Tribunal dismissed it based on the lack of reason that he could not continue his private life in his country. Mr T appealed his decision before the Court of Appeal.
Both cases turned on the important case of Chikwamba , but also some related case law (TG v SSHD  ; SZ v Secretary of SSHD  ; MA v SSHD ) which rulings are
To dismiss the appeal based on article 8 invoking that the application can be made from the country of origin may constitute a disruption of private life sufficient to engage article 8, especially if children are involved.
In that case, to enforce somebody to go back to his country to make the application would be disproportionate regarding to article 8, unless there are particulars reasons.
Identify these particulars reasons will be a sensitive fact, relevant factors need to be identify (mostly family situation).
No consideration at the fact that the entry is lawful or not.
The Court of appeal agreed with the Secretary of State on both cases.
On Mr H case, the Court of Appeal agreed with the First Tier Tribunal on three arguments: first being in the UK not for permanent leave, neither the applicant nor his wife had any legitimate expectation of a right to remain; in second the Court considerate that family life could perfectly continue in the country of origin; and finally the period of separation would not be long. Therefore the Court of Appeal ruled that there was no breach of the article 8.
Mr T appeal was also dismissed. First the judge denied the idea that specifics risk have to be proven by the judge to justify a rejection of the article 8 claim, the judge can justify his decision by general terms. The Court then reaffirm that the “near miss” argument do not play in immigration law, as it was already stated in Miah’s case (Miah v SSHD ). Finally the Court ruled that Chikwanba had not application here in the way that the immigration judge has carried out a full proportionality assessment based on the claim to take his decision and have not based it only on a procedural reason (that the applicant should normally go back to his country to apply from there).