Updated Home Office Covid-19 Guidance confirms a visitor or applicants with leave of up to 6 months can switch into a family or private life route

Prior to today’s updated Guidance, a blog post of much earlier today enquired whether Home Office Covid- 19 Guidance as published on 29 May 2020, permits visiting partners of British citizens to switch into the family life partner route: https://ukimmigrationjusticewatch.com/2020/06/08/by-passing-entry-clearance-requirements-does-home-office-covid-19-guidance-permit-visiting-partners-of-british-citizens-to-switch-into-the-family-life-partner-route/

The conclusion within the blog post, despite what is provided for in Appendix FM and usual accompanying Guidance, was that a visitor should be able to switch into the family life route on the following basis:

“On its face, if it is to be argued that  a visitor currently in the UK can rely on the published Home Office Covid-19 Guidance so as to switch  and submit a leave to remain application under the family life Rules, this appears in direct contradiction to existing Rules, other  “usual” Guidance  and caselaw as set out above.

It is important to note however that the new Covid-19 Switching Guidance is a temporary measure, a concession,  in response to the current pandemic, likely intended to only allow such switching applications to be submitted within a period of defined duration. To that extent, where temporary Guidance is brought expressly into existence by the Government to cater for a certain event or circumstances, then the current Covid-19 Guidance is not inconsistent with the Immigration Rules.

………………

In the absence of  any category application routes being set out, the Covid-19 Advice expressly disapplies or waives the requirement to return broad and apply for entry clearance. It should be capable of reliance  for example by visitors intending to submit a leave to remain application on the family life partner route…….. What would be the point of refusing such an application for  leave to remain on the basis the applicant should return abroad and apply for entry clearance where they  cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19)?”

The blog post concludes by suggesting on how best to proceed with an application under the family life route as a visitor.

The Home Office have today, 8 June 2020, updated their Covid-19 Guidance to confirm that up to 31 July 2020,  applicants in the UK as a visitor or with leave of up to 6 months can switch into a family or private life route:- Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents

The updated Guidance should therefore be read as published in context as follows:

“If you’re applying to stay in the UK long-term

You can apply from the UK to switch to a long-term UK visa until 31 July 2020 if your leave expires between 24 January 2020 and 31 July 2020. This includes applications where you would usually need to apply for a visa from your home country.

You’ll need to meet the requirements of the route you are applying for and pay the UK application fee.

This includes those whose leave has already been extended to 31 July 2

You can apply online. The terms of your leave will remain the same until your application is decided.

……………………….

If you’re applying to enter the UK or remain on the basis of family or private life

There are temporary concessions in place if you’re unable to meet the requirements of the family Immigration Rules to enter or remain in the UK due to the coronavirus outbreak. Up to 31 July, applicants in the UK as a visitor or with leave of up to 6 months can switch into a family or private life route provided the requirements of the Immigration Rules are otherwise met. See If you’re applying to stay in the UK long-term.

If you’re unable to travel back to the UK due to coronavirus travel restrictions and your leave has expired, a short break in continuous residence will be overlooked. You are expected to make your next application as soon as possible.

………………………………”

The switching concession as updated temporarily takes the sting out of the recently published Upper Tribunal decision in  Younas (section 117B (6) (b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC) (24 March 2020)

The effect of Younas  has been considered in a recent blog post: https://ukimmigrationjusticewatch.com/2020/06/02/chikwamba-and-zambrano-cases-real-practical-effect-of-younas-is-erosion-and-dilution-of-provisions-underpinning-family-life-claims/

Younas recently concluded in relation to paragraph EX.1(b) of Appendix FM (insurmountable obstacles to family life with a partner continuing outside the UK), that as the appellant had leave as a visitor when she submitted  her application in 2016 and that leave continued by operation of section 3C of the Immigration Act 1971, she therefore did not satisfy the Immigration Rules, Appendix FM because she did not meet the eligibility immigration status requirement at E-LTRP.2.1.

Having regard to the updated Home Office Guidance, it appears that had Younas applied for leave to remain as a partner whilst holding a visitor visa relying on the Home office Covid-19 switching Concession, she would likely have been granted leave to remain by the Home Office in the first instance. The adverse credibility findings and inconsistencies that emerged in Younas seem to have largely come about during the course of oral evidence before an unyielding Upper Tribunal Panel following a Home Office refusal decision.

In essence, the current position is that those like Younas who sought to apply for leave to remain on the family life route pre Covid-19, whilst holding a visitor visa, are unlikely, having regard to the decision in the Upper Tribunal, to succeed under the Immigration Rules Appendix FM – unless the claim succeeds on exceptional circumstances outside the Rules.

Conversely, a visitor who arrived in the UK  two months ago, can on the basis of the concession, switch into the  family route and not have it held against them as contrary to their previously stated intention to return abroad at the end of their visit.

Without further clarificatory Guidance on the concession, it currently appears that a visitor can seek to purposively arrive in the UK before 31 July 2020, intently focused on relying on the published Guidance and then apply to switch into the family life route. The concession is welcome, however without further Guidance to cater for the gap, the Home Office appear to have left it wide open for new visitor arrivals, especially non -visa nationals, to legally circumvent the requirement to obtain  prior entry clearance as a partner of a British citizen or parent of a British citizen child and so legitimately apply for leave to remain whilst in the UK.

By-passing entry clearance requirements: Does Home Office Covid-19 Guidance permit visiting partners of British citizens to switch into the family life partner route?

Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents , https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents,  is stated to provides advice for visa customers and applicants in the UK, visa customers outside of the UK and British nationals overseas who need to apply for a passport affected by travel restrictions associated with coronavirus.

For those persons in the UK, the Advice/Guidance provides that if their  leave expires between 24 January 2020 and 31 July 2020, their visa will be extended to 31 July 2020  if  they cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19).

Although the Guidance also advises that affected persons are expected to take all reasonable steps to leave the UK before 31 July 2020 where it is possible to do so, relevantly, the current publication also states:

“If you’re applying to stay in the UK long-term

You can apply from the UK to switch to a long-term UK visa until 31 July 2020 if your leave expires between 24 January 2020 and 31 July 2020. This includes applications where you would usually need to apply for a visa from your home country.

You’ll need to meet the requirements of the route you are applying for and pay the UK application fee.

This includes those whose leave has already been extended to 31 July 2020.

You can apply online. The terms of your leave will remain the same until your application is decided”.

The Guidance in this regards is very brief and provides no clarification of the types of applicants or categories of the Rules in relation to which reliance can be placed so that leave to remain applications can be submitted.

The Guidance however is in writing, in English and published as within the public domain for all to see and read.  

Is it therefore possible to do exactly what it says to do on the tin – for example, follow what is said in that Guidance for a visiting spouse or unmarried partner of a British citizen resident in the UK and apply to switch from visitor status to the family life partner  route?

The prohibition on visitors applying for leave to remain under the family life route

Both the Immigration Rules Appendix FM, relevant main  Guidance and caselaw make it clear that a visitor cannot meet the requirements of the family Immigration Rules for leave to remain in the UK.  The immigration status requirements of the Rules for Partner applications contain this prohibition.

The Immigration Rules Appendix FM provide:

“Immigration status requirements

E-LTRP.2.1. The applicant must not be in the UK-

(a) as a visitor; or

(b) with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings

……………”

Home Office Guidance, Family life (as a partner or parent), private life and exceptional circumstances, Version 8.0,2 June 2020 currently provides:

Immigration status requirements

To meet the eligibility requirements for leave to remain, the applicant must not be in the UK:

• as a visitor

• with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé, fiancée or a proposed civil partner, or was granted pending the outcome of family court or divorce proceedings

EX.1. does not apply when an applicant is in the UK with such leave

Where the applicant is in the UK as visiting friends or on holiday on a standard visit visa, it means that they have undertaken leave the UK before their visa expires. In all cases, visa or non-visa nationals have satisfied the entry clearance officer or immigration officer that they will do so, or have used eGates to enter the UK on presumption of compliance with the conditions of their stay. Those wishing to come to the UK to settle here as a partner or parent should apply for entry clearance under the family Immigration Rules. In view of that, a visitor cannot meet the requirements of the family Immigration Rules to remain in the UK.

Where an application is made by a visitor to remain, it is only where there are exceptional circumstances, that a person here as a visitor can remain on the basis of their family or private life on a 10-year route.

…………………….”

In seeking to cement the requirements of the Rules, the Upper Tribunal in  Younas (section 117B (6) (b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC) (24 March 2020) found as a fact that:

“61.The appellant travelled to the UK from the United Arab Emirates in May 2016 (whilst pregnant with the child of her British citizen partner) as a visitor. Their relationship was subsisting at the time. The appellant claims that her intention was to return to the United Arab Emirates and it is only because of difficulties with the pregnancy, and then with her child’s health, that she did not do so. However, she did not adduce any medical evidence to support her claim to have been unable to return to the United Arab Emirates either whilst pregnant or shortly after the child was born. Nor has she explained why she did not return to Dubai prior to her United Arab Emirates residency visa expiring in order to avoid a situation where her only option, other than to remain in the UK, would be to return to Pakistan, where she claims she would be without any support or accommodation. We have no doubt, and find as a fact, that the appellant entered the UK with the intention of giving birth and remaining with her partner permanently. We also find that she had this intention when she completed the 2016 application form in which she stated she only wished to remain in the UK for a further six months”.

Younas also found in relation to paragraph EX.1(b) of Appendix FM (insurmountable obstacles to family life with a partner continuing outside the UK):

“72. ……. It is not sufficient, in order to satisfy the requirements of Appendix FM, that a partner of a UK citizen is able to show that there would be “insurmountable obstacles” to the relationship continuing outside the UK. It is also necessary to satisfy certain of the eligibility requirements specified in paragraph E – LTRP, including that the applicant must not be in the UK as a visitor (E-LTRP.2.1). The appellant had leave as a visitor when she submitted the 2016 application and that leave continued – and continues – by operation of section 3C of the Immigration Act 1971. She therefore does not satisfy the Rules because she does not meet the eligibility immigration status requirement at E-LTRP.2.1”.

What also proved fatal to her appeal, is the Upper Tribunal’s conclusion in Younas that the public interest required her removal because:

“98. We have found that the appellant (a) entered the UK as a visitor even though her real intention was to remain in the UK with her partner; and (b) remained in the UK despite stating in the 2016 application that she would leave after 6 months. We agree with Mr Lindsay that, in the light of this immigration history, the public interest in the appellant’s removal from the UK is strong; and the strength of that public interest is not significantly diminished because she will be able to re-enter the UK. The integrity of, and the public’s confidence in, the UK’s immigration system is undermined if a person is able to circumvent it, as the appellant has attempted to do by entering the UK as a visitor with the intention of remaining permanently. Requiring the appellant, in these circumstances, to leave the UK in order to make a valid entry clearance application as a partner, far from being merely a disruptive formality, serves the important public interest of the maintenance of effective immigration controls”.

The Court of Appeal also concluded in TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109:

“41.The FtT allowed PG’s appeal on the basis that she qualified for leave to remain under paragraph EX.1(b). That was a clear error of law because PG was a visitor. PG did not meet the requirements of E-LTRP.2.1. Her status was precarious. While in the UK as a visitor, with a visa of less than five months, she began a relationship with the man who became her husband only days after she arrived and they were married one month later. The only decision that was relevant is accordingly an article 8 consideration outside the Rules which was not undertaken by the FtT”.

On its face, if it is to be argued that  a visitor currently in the UK can rely on the published Home Office Covid-19 Guidance so as switch  and submit a leave to remain application under the family life Rules, this appears in direct contradiction to existing Rules, other  “usual” Guidance  and caselaw as set out above.

It is important to note however that the new Covid-19 Switching Guidance is a temporary measure, a concession,  in response to the current pandemic, likely intended to only allow such switching applications to be submitted within a period of defined duration. To that extent, where temporary  Guidance is brought expressly into existence by the Government to cater for a certain event or circumstances, then the current Covid-19 Guidance is not inconsistent with the Immigration Rules.

Covid- 19  switching Guidance effect  –  express waiver or concession

The new Guidance does not, for example, state that visitors can now  apply to switch into the family life partner route without the need to return abroad and apply for entry clearance.

As above, the Guidance is brief,  however it can be stated that its intent is clear enough- to permit applicants who would normally be required to apply for entry clearance to switch into long term routes without leaving the UK.  Without such a conclusion, then the switching advice is redundant, illusory,  it might as well not be there.  

In the absence of  any catergory application routes being set out, the Covid-19 Advice expressly disapplies or waives the requirement to return broad and apply for entry clearance. It should be capable of reliance  for example by visitors intending to submit a leave to remain application on the family life partner route.

The entry clearance application that a returning visitor with a qualifying partner would need to make abroad is by reference to the Immigration Rules, Appendix FM.

The family life route is for those seeking to enter or remain in the UK on the basis of their family life with a person who:

  • is a British Citizen
  • is settled in the UK, or
  • is in the UK with limited leave as a refugee or person granted humanitarian protection (and the applicant cannot seek leave to enter or remain in the UK as their family member under Part 11 of the Immigration Rules).

GEN.1.2 of Appendix FM provides that “partner” means:

  • the applicant’s spouse;
  • the applicant’s civil partner;
  • the applicant’s fiancé(e) or proposed civil partner; or
  • a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application

Section EC-P.1.1. of Appendix FM provides the requirements to be met for entry clearance as a partner.

Section S-EC sets out the suitability requirements for an entry clearance application as a partner.

Section E-ECP.1.1. states that the eligibility requirements for entry clearance as a partner  requires all of the requirements in paragraphs E-ECP.2.1. to 4.2. to be met:

  • Relationship eligibility requirements
  • Financial eligibility requirements
  • English language eligibility requirement

Relevantly, as the Covid-19 Advice appears to disapply the requirement to return broad and apply for entry clearance, a visiting Partner should be able submit an application for  leave to remain as the partner of a qualifying  Sponsor, switching into the family life route.

Section R-LTRP.1.1. sets out the requirements to be met for limited leave to remain as a partner.

Section S-LTR.1.1. lists the suitability requirements for limited leave to remain as a partner.

Section E-LTRP.1.1. states that to qualify for limited leave to remain as a partner, all of the eligibility requirements of paragraphs E-LTRP.1.2. to 4.2. must be met:

  • Relationship eligibility requirements
  • Immigration status eligibility requirements***
  • Financial eligibility requirements
  • English language requirement

In relation to visitors, as regards the immigration status requirement, it is SectionE-LTRP.2.1.  that provides that an  applicant must not be in the UK as a visitor or with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings.

Visitors would normally be required to return abroad and submit an application for entry clearance under the relevant Rule, however as from 24 March 2020, following the Home Office published Covid -19 Guidance, it has been expressly clarified by the Home Office that:

  • until 31 July 2020, if a person’s leave expires between 24 January 2020 and 31 July 2020, such a person  can apply from within the UK to switch to a long-term UK visa and this includes applications where a person would usually need to apply for a visa from their home country.

The Guidance provides that if a person has already had their visa extended to 31 May 2020 ( by reference to earlier published Covid -19 Guidance) their visa will be extended automatically to 31 July 2020.

A visitor holding such extended leave, should on the basis of the Home Office Guidance be in a position to specifically rely on that advice( printing it out on the date of submission of the  online application)  and making representations including providing supportive evidence to show that the requirements of the relevant Immigration Rules are met – https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-fm-se-family-members-specified-evidence

What would be the point of refusing such an application for  leave to remain on the basis the applicant should return abroad and apply for entry clearance where they  cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19)?

Moreover, it was only on 29 May 2020 that the Covid -19 Guidance clarified:

“Some UK Visa Application Centres (VACs) are resuming services, where local restrictions allow. For updates to the status of VACs in your country, contact:

Ongoing global restrictions mean some UKVI services will remain closed. Contact your local VAC to find out the latest status. Where services are resuming, existing customers will be contacted”.

On- line application form FLR(FM) is used by those applying  to extend their stay in the UK as the partner or dependent child of someone who is settled in the UK or who is a refugee or under humanitarian protection. In  the absence of any other newly published application form, apart from Form FLR(FP), this seems the most relevant and appropriate form for use on switching into the family life route.

To enable online submission of the application form, fees of £2052.20 to be paid online will  be collected per applicant, broken down currently as follows:

  • Home Office application fee- £1033.00
  • Immigration Health Surcharge- £1000.00
  • Biometric enrolment fee- £19.20

Section 3C leave whilst the leave to remain application is pending

If a visitor were to timely  and validly apply for leave to remain as a partner, relying on the Home Office Covid-19 Switching Advice, they would obtain the benefit of Section 3C leave pending a decision on the application or connected timely submitted appeal.

The Upper Tribunal in Younas concluded at paragraph 72: “The appellant had leave as a visitor when she submitted the 2016 application and that leave continued – and continues – by operation of section 3C of the Immigration Act 1971. She therefore does not satisfy the Rules because she does not meet the eligibility immigration status requirement at E-LTRP.2.1.”

The current Covid-19 Guidance set out above concludes by stating: “You can apply online. The terms of your leave will remain the same until your application is decided”.

If still viewed as holding visitor leave prior to the  expiry of the automatic extension until  31 July 2020, a visitor who therefore applies validly for leave to remain before that visitor visa expires, continues to hold the status of a visitor until a decision on the application is made by the Home Office. The applicant will not be viewed as an overstayer whilst the leave to remain application is under consideration in these circumstances.

5year or 10year route to settlement?

The route to settlement (5-year or 10-year) an applicant can qualify for, depends on whether all, some or no eligibility requirements are met.

All eligibility requirements must be met for a partner to qualify for entry clearance or leave to remain on the 5-year route.

Otherwise to qualify for entry clearance or leave to remain on a 10-year route:

• an applicant must meet all eligibility requirements, and rely on other sources of income to meet the financial eligibility requirement because there are exceptional circumstances in accordance with GEN.3.1. of Appendix FM

• an applicant must meet some and qualify for an exception to the other requirements because EX.1.(a) or (b) of Appendix FM applies

• an applicant meets some or no eligibility requirements but there are exceptional circumstances in accordance with paragraph GEN.3.2. of Appendix FM

The Home Office can be asked to consider the leave application on the basis that although the applicant is without the requisite entry clearance( which has been waived) and is a visitor  who has placed reliance upon  the Home Office Covid -19 Advice, having regard to the submitted representations and evidence:

  • Leave should be granted on the basis that all the eligibility requirements of the Immigration Rules for a partner have been met- leading to a grant on the 5year route to settlement; alternatively
  • Leave should be granted where all the eligibility requirements of the Immigration Rules for a partner  have not been met, leading to grant of leave on the 10year route to settlement.

Possible issues

The Secretary of State could consider a leave to remain application under the family life partner route from a person currently holding leave as a visitor relying on the Covid-19  Switching Guidance and grant leave to remain, as requested, as a partner.

Alternatively, the result of such an application could be a refusal of leave on the basis that the published Covid-19 Switching Advice does not have the effect sought by the applicant i.e that visitors can apply in-country on the family life route under Appendix FM  without returning abroad and applying for entry clearance. The Secretary of State could also add on that no exceptional circumstances have been identified justifying a grant of leave to remain outside the Rules on Article 8 grounds. 

A refusal decision should generate an in -country right of appeal to the Tribunal ( unless the claim is certified as clearly unfounded under Section 94 of the 2002 Act, providing for an out -of -country right of appeal).

A visitor in the UK whose leave has been extended to 31 July 2020, may have:

  • contemplated remaining in the UK beyond their leave for whatever reason( thereby remaining here illegally as an overstayer, which is a criminal offence)
  • intended to apply for leave to remain under Appendix FM whatever the outcome, whether or not the Covid -19 Advice caters for their position

It is such persons who could most likely consider taking advantage of the Home Office switching Guidance and apply timely for leave to remain as a partner, seeking to switch into the settlement route.

Where a visitor considers that the current Covid-19 switching Advice will not cover them for the purposes of a leave  to remain application as a partner under the Rules, then consideration should be given to leaving the UK by 31 July 2020(or by any further published extension date)  so as to make the relevant entry clearance application and avoid becoming an overstayer.

The potential to switch relying upon the Covid-19 Guidance not only impacts visitors wishing to apply for leave as Partners under the Rules  but also visitors  seeking to apply for leave to remain as a Parent under Appendix FM. Visiting parents of  the following:

  • a child who is a British Citizen or settled in the UK; or
  • a child that has lived in the UK continuously for at least the 7 years immediately preceding the date of application

are not eligible for leave to remain under Appendix FM because the immigrations status requirements apply to them as well:

Immigration status requirement

E-LTRPT.3.1. The applicant must not be in the UK-

(a) as a visitor; or

(b) with valid leave granted for a period of 6 months or less, unless that leave was granted pending the outcome of family court or divorce proceedings;

…………………”

The Home Office should be publishing fuller and detailed Guidance to cater specifically for  switching applications by those whose leave has been extended to 31 July 2020.  What category of applicants are affected and so able to apply to switch? Is there to be a specific type of application form for use? The current circumstances leave room for some degree  of speculation  and therefore  not conducive to the need to give certain and clear advice.  For now however, what the Covid-19 Guidance on switching translates to is a concession or temporary policy by the Government, allowing those individuals who would normally be required to leave the UK and apply for entry clearance from abroad,  to apply in – country to extend their leave in the UK on a long term route.  

Chikwamba and Zambrano cases: Real practical effect of Younas is erosion and dilution of provisions underpinning family life claims

Younas (section 117B (6) (b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC) (24 March 2020) alarmingly erodes  and dilutes the ready reliance that applicants, have in the last few years, been placing upon Chikwamba and Zambrano.

Younas inevitably affects partners and parents of British citizens, who for one reason or the other fall foul of Appendix FM and are required to return abroad and apply for entry clearance.

In Younas, the Upper Tribunal delved deep and produced a  judgment touching upon several matters, all of which, for those in Younas’s position as well as for overstaying claimants,  impact negatively upon their ability to place successful reliance  on family life provisions as provided for in the Rules and legislation.

The practical effect of the Upper Tribunal’s revamped and rather narrow interpretation of Chikwamba (following the introduction of Part 5A of the 2002 Act),  results in partners who having failed to place reliance on its principles to resist  temporary removal, being almost certainly shut out from relying successfully on Zambrano arguments, if they also have a British citizen child residing in the UK.

The Upper Tribunal’s interpretation of  Chikwamba, Zambrano and Section 117B(6) brings into existence new judicial guidance and concerningly, a reading into legislation that which on its face, was not previously apparent.

Sections 117B(6) as currently worded in relation to the reasonableness test and reliance upon Zambrano is being disapplied or suspended by the Upper Tribunal, where there is a prior conclusion that a claimant can temporarily return abroad and apply for the requisite clearance.  

For section 117B(6),  issues for the Upper Tribunal have evolved to considerations of whether it is reasonable to expect the British child to leave the UK for a temporary period with the parent (as opposed to an indefinite period whilst the parent makes an application for entry clearance from abroad).

In relation to Zambrano, considerations of loss of enjoyment of the substance of the British child’s Union citizenship rights have been interpreted to be only theoretical if limited to a temporary period(as opposed to indefinite exclusion, whilst the primary carer, accompanied by the child, makes an application for entry clearance).

The subject of the unfavourable judgement in Younas was a Pakistani national who entered the UK as a visitor in 2016, whilst not only in a relationship with a British citizen but also pregnant with his child.  Two months following arrival and still holding leave as a visitor, she submitted an application intending to obtain a grant of  leave for 6months. Subsequently, following the birth of her British child she sought to vary the outstanding application, seeking leave to remain on family life grounds with her  British husband and child.

 In all this, Younas never overstayed her leave, timely applying to extend it but ultimately retaining her status as a visitor by virtue of Section 3C leave.

These facts, combined with the shaky oral evidence given to the Upper Tribunal,  provoked adverse credibility findings and led to the conclusion that Younas had  sought to circumvent the immigration system.

The punishment result was temporary banishment to Pakistan for up to 9months along with her British child, to a country Younas had not lived in,  so as to apply for entry clearance as a spouse.

(A). Appendix FM of the Immigration Rules –  satisfaction of the insurmountable obstacles test

It was argued  on behalf of  the appellant  that  she satisfied the requirements of paragraph  EX.1(b) of Appendix FM (insurmountable obstacles to family life with a partner continuing outside the UK) and her appeal should be allowed on this basis.

The Upper Tribunal indicated within their judgement that they found some matters  problematic and concluded as follows:

  • The appellant travelled to the UK from the United Arab Emirates in May 2016 (whilst pregnant with the child of her British citizen partner) as a visitor. Their relationship was subsisting at the time. The appellant claimed that her intention was to return to the United Arab Emirates and it was only because of difficulties with the pregnancy, and then with her child’s health, that she did not do so. However, she did not adduce any medical evidence to support her claim to have been unable to return to the United Arab Emirates either whilst pregnant or shortly after the child was born. Nor had she explained why she did not return to Dubai prior to her United Arab Emirates residency visa expiring in order to avoid a situation where her only option, other than to remain in the UK, would be to return to Pakistan, where she claimed she would be without any support or accommodation.
  • The Upper Tribunal indicated they had no doubt, and found as a fact, that the appellant entered the UK with the intention of giving birth and remaining with her partner permanently. It was also found that she had this intention when she completed the 2016 application form in which she stated she only wished to remain in the UK for a further six months.
  • Although the appellant had never lived in Pakistan, she had maintained a connection to the country, visiting on several occasions. The Upper Tribunal found it far more likely than not that on those visits she stayed with family, rather than in hotels. In the absence of any evidence pointing to the contrary – it was more likely than not that she was familiar with the language, culture, religion and societal norms of Pakistan, having grown up in a Pakistani family and within the Pakistani community in Dubai.
  • The Upper Tribunal  observed that rather than state matters in a straightforward way the appellant and her partner had sought to present their evidence in a way that they believed would assist them. In relation to the appellant’s partner’s income, in the 2018 application form the appellant stated that her partner earned approximately £1,600 a month after income tax and other deductions. This corresponded to £19,200 before tax a year and would be sufficient to meet the financial eligibility requirements under Appendix FM. In contrast, at the hearing before the Upper Tribunal,  in oral evidence   it was stated that the appellant’s partner earned £250-£300 per week (corresponding to £13,000 – £15,600 per year). The appellant was found to be seeking to convey the opposite – that her partner’s income did not meet the threshold under Appendix FM.
  • The Upper Tribunal found that it was more likely than not that the appellant’s partner’s current income met the financial eligibility threshold but that even if it did not he could in a short space of time increase his income (by, for example, taking on more carpet fitting work from different sources) in order to meet the threshold.
  • Taking into consideration the time it was likely to take to compile the necessary evidence for an entry clearance application, to secure an appointment in Pakistan, and to receive the decision once the application is made,  the Upper Tribunal found that the appellant would be out of the UK (in Pakistan, awaiting a grant of entry clearance) for between 4 and 9 months.
  • The appellant was the primary carer for her daughter. Given her partner’s work commitments and the child’s young age, it was more likely than not that the appellant would bring her daughter with her to Pakistan if she was required to leave the UK.
  • the appellant’s daughter was noted to be a healthy child with no developmental or other problems.

Inability to rely on Appendix FM as a Partner – appellant had leave as a visitor at time of application:

At paragraph 72, the Upper Tribunal concluded that Younas was not entitled to leave under Appendix FM and her application under the Immigration Rules therefore failed:

“……It is not sufficient, in order to satisfy the requirements of Appendix FM, that a partner of a UK citizen is able to show that there would be “insurmountable obstacles” to the relationship continuing outside the UK. It is also necessary to satisfy certain of the eligibility requirements specified in paragraph E – LTRP, including that the applicant must not be in the UK as a visitor (E-LTRP.2.1). The appellant had leave as a visitor when she submitted the 2016 application and that leave continued – and continues – by operation of section 3C of the Immigration Act 1971. She therefore does not satisfy the Rules because she does not meet the eligibility immigration status requirement at E-LTRP.2.1”.

(B). Reliance upon Chikwamba principles and consideration of the public interest

Younas argued that there was a principle, derived from the House of Lords’ judgment in Chikwamba v SSHD [2008] UKHL 40 , that there is no public interest in removing a person from the UK in order to make an entry clearance from abroad that would be certain to succeed. Her case was that as she would succeed in her application from outside the UK it followed that she fell squarely within the Chikwamba principle and her appeal should be allowed on that basis.

The Secretary of State’s position was that Younas was expected to leave the UK for only a limited period of time in order to apply for entry clearance to join her partner and that the issue  in the appeal was whether her temporary removal from the UK was proportionate. It was argued that Younas would be able to travel to Pakistan in order to apply for entry clearance and that it was  not being  contended that she would be able to return to the United Arab Emirates, where she had been born and lived.

Whether temporary removal would be disproportionate – immigration history, prospective length/degree of family disruption and circumstances in country of return relevant:

Between paragraphs  83 to  89 of  Younas, the Upper Tribunal  made the following observations by reference to caselaw:

  • “Neither Chikwamba nor Agyarko support the contention that there cannot be a public interest in removing a person from the UK who would succeed in an entry clearance application. In Agyarko, a case in which the Chikwamba principle was not at issue, it is only said that that there “might” be no public interest in the removal of such a person” {83}.
  • more than a mere legal argument placing reliance on Chikwamba principles was required.
  • It was noted that in Chikwamba, Lord Brown engaged in a detailed consideration of the individual and particular circumstances of the appellant (specifically, that the conditions in Zimbabwe were “harsh and unpalatable”, her refugee husband could not accompany her and she would need to bring to Zimbabwe – or be separated from – her child).
  • Chikwamba itself was a “stark” case, certain to be granted leave to enter”,  if an application were made from outside the UK –  in such a case there was no public interest in removing the applicant to Zimbabwe.
  • The Chikwamba principle will require a fact-specific assessment in each case.
  • What had to be considered were the individual circumstances of the case – in Chikwamba, Lord Brownidentified factors relevant to both whether there is public interest in removal (a person’s immigration history) and whether temporary removal would be disproportionate (the prospective length and degree of family disruption, and the circumstances in the country of temporary return).
  • The Upper Tribunal also noted that in R (on the application of Chen) v Secretary of State for the Home Department) (Appendix FM – Chikwamba – temporary separation – proportionality) IJR [2015] UKUT 189 (IAC), Upper Tribunal Gill observed that Lord Brown was not laying down a legal test when he suggested in Chikwamba that requiring a claimant to make an application for entry clearance would only “comparatively rarely” be proportionate in a case involving children, and that in all cases it will be for the individual to demonstrate, through evidence, and based on his or her individual circumstances, that temporary removal would be disproportionate”.

Approach to Chikwamba after introduction Part 5A of the 2002 Act – the four Questions:

As to considerations of the Chikwamba principles in conjunction with the public interest considerations in Part 5A of the 2002 Act, the Upper Tribunal noted as follows at paragraph 90 of their judgement:

“Chikwamba pre-dates Part 5A of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”), which was inserted by the Immigration Act 2014. Section 117A(2) of the 2002 Act provides that a court or tribunal, when considering “the public interest question,” must have regard to the considerations listed in section 117B (and 117C in cases concerning the deportation of foreign criminals, which is not relevant to this appeal). The “public interest question” is defined as “the question of whether an interference with a person’s right to respect for private and family life is justified under article 8(2)”. There is no exception in Part 5A of the 2002 Act (or elsewhere) for cases in which an appellant, following removal, will succeed in an application for entry clearance. Accordingly, an appellant in an Article 8 human rights appeal who argues that there is no public interest in removal because after leaving the UK he or she will be granted entry clearance must, in all cases, address the relevant considerations in Part 5A of the 2002 Act including section 117B(1), which stipulates that “the maintenance of effective immigration controls is in the public interest”. Reliance on Chikwamba does not obviate the need to do this”.

The Upper Tribunal  in  Younas set out four questions requiring consideration in matters seeking to rely on Chikwamba:

“91. In the light of the foregoing analysis, we approach the appellant’s Chikwamba argument as follows.

92.  The first question to be addressed is whether her temporary removal from the UK is a sufficient interference with her (and her family’s) family life to even engage article 8(1). If article 8(1) is not engaged then the proportionality of removal under article 8(2) – and therefore the Chikwamba principle – does not arise

93.   We did not hear argument on this point and both parties proceeded on the basis that article 8 is engaged. In this case, where one of the consequences of temporary removal will be that the appellant’s daughter is separated from her father for several months, we are in no doubt that article 8(1) is engaged. However, even though the threshold to engage article 8(1) is not high (see AG (Eritrea) [2007] EWCA Civ 801 and KD (Sri Lanka) [2007] EWCA Civ 1384), it is not difficult to envisage cases (for example, where there would not be a significant impediment to an appellant’s partner accompanying the appellant to his or her country for a short period) in which article 8 would not be engaged.

94.   The second question is whether an application for entry clearance from abroad will be granted. If the appellant will not be granted entry clearance the Chikwamba principle is not relevant. A tribunal must determine this for itself based on the evidence before it, the burden being on the appellant: see Chen at 39. In this case, we have found, for the reasons explained above, that, on the balance of probabilities, the appellant will be granted entry clearance if she makes an application from Pakistan to join her partner.

95.   The third question is whether there is a public interest in the appellant being required to leave the UK in order to undertake the step of applying for entry clearance; and if so, how much weight should be attached to that public interest.

……………

97.   If there is no public interest in a person’s removal then it will be disproportionate for him or her to be removed and no further analysis under Article 8 is required. On the other hand, if there is at least some degree of public interest in a person being temporarily removed then it will be necessary to evaluate how much weight is to be given to that public interest so that this can be factored into the proportionality assessment under article 8(2).

…………………

99. The fourth question is whether the interference with the appellant’s (and her family’s) right to respect for their private and family life arising from her being required to leave the UK for a temporary period is justified under article 8(2). This requires a proportionality evaluation (i.e. a balance of public interest factors) where consideration is given to all material considerations including (in particular) those enumerated in section 117B of the 2002 Act”.

Focus on immigration history, conduct, circumvention of immigration system- strong public interest in the appellant’s removal from the UK:

In relation to the third question of  whether  there was a public interest in the appellant being required to leave the UK in order to undertake the step of applying for entry clearance, the Upper Tribunal found against Younas , focusing on her immigration history and conduct:

“98.   We have found that the appellant (a) entered the UK as a visitor even though her real intention was to remain in the UK with her partner; and (b) remained in the UK despite stating in the 2016 application that she would leave after 6 months. We agree with Mr Lindsay that, in the light of this immigration history, the public interest in the appellant’s removal from the UK is strong; and the strength of that public interest is not significantly diminished because she will be able to re-enter the UK. The integrity of, and the public’s confidence in, the UK’s immigration system is undermined if a person is able to circumvent it, as the appellant has attempted to do by entering the UK as a visitor with the intention of remaining permanently. Requiring the appellant, in these circumstances, to leave the UK in order to make a valid entry clearance application as a partner, far from being merely a disruptive formality, serves the important public interest of the maintenance of effective immigration controls”.

In relation to the fourth question, the Upper Tribunal stated that the evidence before it indicated that temporary removal would result in a substantial interference with the appellant’s family life.  It was noted most significantly, the appellant’s daughter would be separated from her father (who would not be able to accompany her because of his work commitments and responsibilities for his sons) for several months. In addition, the appellant would be separated from her partner, and would have to reside in a country she had never previously lived in. However, there was no reason the appellant would not be able to live comfortably (her partner could provide her with financial support during her temporary period outside of the UK) and she would be living in a culture with which she was familiar and in proximity to extended family.

The Upper Tribunal concluded that even though the appellant’s removal would be followed by her re-entry, there was, nonetheless a strong public interest in her being required to leave the UK in order to comply with the requirement to obtain valid entry clearance as a partner. Her removal, in order to make an entry clearance application from Pakistan was proportionate.

(C ). Section 117B(6) and the reasonableness test- reasonable for British child to leave the UK with her claimant mother

Younas argued that it would not be reasonable to expect her daughter to leave the UK (even for a temporary period, whilst her application for entry clearance was pending) and therefore, in accordance with s117B(6) of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”), the public interest did not require her removal.

The Upper Tribunal concluded that Section 117B(6) (no public interest in removal where it would not be reasonable to expect a qualifying child to leave the UK ) did not apply because they rejected the argument that it was not reasonable to expect the appellant’s child to leave the UK.

The Upper Tribunal noted that Section 117B(6) is a self-contained provision, such that where the conditions specified therein are satisfied the public interest does not require the person’s removal( MA (Pakistan) & Ors v Upper Tribunal [2016] EWCA Civ 705)

The Upper Tribunal further noted  that the following was accepted by the Secretary of State:

  • that the appellant met the condition in 117B(6)(a) – the appellant had a genuine and subsisting parental relationship with a qualifying child
  • that it would not be reasonable to expect the appellant’s daughter to leave the UK indefinitely – 117B(6)(b)

What the Secretary of State however argued  was that the condition in section 117B(6)(b) was not met because it would be reasonable to expect the appellant’s daughter to leave the UK temporarily whilst her mother made an application for entry clearance from Pakistan.

The Upper Tribunal observed the following:

  • Section 117B(6)(b) requires a court or tribunal to assume that the child in question will leave the UK
  • A court or tribunal must base its analysis of reasonableness on the facts as they are (having assumed, for the purpose of this analysis, that the child will leave the UK with his or her parent or parents). The “real world” context includes consideration of everything relating to the child, both in the UK and country of return, such as whether he or she will be leaving the UK with both or just one parent; how removal will affect his or her education, health, and relationships with family and friends; and the conditions in the country of return. The conduct and immigration history of the child’s parent(s), however, is not relevant. See KO at paras. 16 – 18.
  • The “real world” circumstances in the country of return may be significantly different if a child will be outside the UK only temporarily rather than indefinitely
  • It was noted that both parties agreed that the length of time a child will be outside the UK is part of the real world factual circumstances in which a child will find herself and the Upper Tribunal were not presented with (and could not conceive of) any good reason why this should not be the case. Accordingly, whether it would be reasonable to expect the appellant’s daughter to leave the UK was to be assessed on the basis of the finding of fact made by the Tribunal that she will be outside the UK, with the appellant, for 4 – 9 months.

Reasonable to expect the British child to leave the UK for a temporary period:

The Upper Tribunal concluded as follows:

  • It was not accepted that the appellant’s daughter would face emotional turmoil as a result of spending up to nine months in Pakistan. She was a young child who would be with her mother (who was her primary carer) in the country of her mother’s citizenship. Although the appellant had not lived in Pakistan, she was familiar with the culture, environment, societal norms and has extended family. The evidence did not indicate that Pakistan would be a difficult or harsh environment for the appellant’s child. She had not yet started school, so there would be no disruption to her education. Nor was there a reason to believe that spending a period of time in Pakistan would be detrimental to her health as there was no evidence before the Tribunal that she had any medical problems.
  • The appellant’s daughter would be separated from her father and step siblings. However, the separation would only be temporary, during which time she would be able to remain in contact with them through telephone, skype and other means of communication (and her father could visit her).
  • Whilst the Tribunal considered that it would be in her best interests to not have to relocate to Pakistan without her father,  they were  equally of the view that she would not suffer any detriment by doing so, given her young age and the temporary nature of the separation.
  • Although the daughter would be temporarily removed from nursery school, there was no evidence to justify the conclusion that this would have any materially adverse effect on her education and general development.

Taking all of these factors into consideration, the Tribunal was satisfied that it would not be unreasonable to expect the appellant’s daughter to leave the UK for a temporary period whilst her mother applied for entry clearance.

(D). Reliance upon Zambrano principles

The appellant  also advanced a further argument  that it would be unlawful to remove her from the UK  as she was entitled to a right of residence in order to avoid her daughter being deprived of the genuine enjoyment of the substance of her European Union Citizenship rights in accordance with Ruiz Zambrano v Office national de l’emploi (Case C-34/09) and Patel v Secretary of State for the Home Department [2019] UKSC 59.

The Upper Tribunal noted as follows in relation to the relevant principles:

“118.  Article 20 of the Treaty on the Functioning of the European Union (“TFEU”) precludes national measures which have the effect of depriving citizens of the European Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. This was applied in Zambrano to mean that a parent of a child who is a British citizen (and therefore also a European Union citizen) is entitled to a (derivative) right of residence to avoid the child being compelled to leave the territory of the European Union as a result of his or her parent being required to leave.

119.    The scope of the concept of “being compelled” to leave the European Union was recently considered by the Supreme Court in Patel v Secretary of State for the Home Department [2019] UKSC 59. At paragraph 30 Lady Arden stated:

 The overarching question is whether the son would be compelled to leave by reason of his relationship of dependency with his father. In answering that question, the court is required to take account, “in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium” ( Chavez-Vilchez, para 71). The test of compulsion is thus a practical test to be applied to the actual facts and not to a theoretical set of facts. As explained in para 28 of this judgment, on the FTT’s findings, the son would be compelled to leave with his father, who was his primary carer. That was sufficient compulsion for the purposes of the Zambrano test. There is an obvious difference between this situation of compulsion on the child and impermissible reliance on the right to respect for family life or on the desirability of keeping the family together as a ground for obtaining a derivative residence card. It follows that the Court of Appeal was wrong in this case to bring the question of the mother’s choice into the assessment of compulsion. (Emphasis added)”.

Loss of enjoyment of the substance of the British child’s Union citizenship rights will only be theoretical(as limited to a temporary period as opposed to indefinite exclusion):

The Upper Tribunal reached the following findings:

  • The Tribunal noted they had found, as a fact, that the appellant was the primary carer of her daughter and that if she was required to leave the UK she would take her daughter with her.
  • Accordingly, applying the interpretation of the Zambrano test in Patel, the Upper Tribunal found that the appellant’s daughter would be compelled to leave the UK as a result of her mother leaving the UK.
  • It was noted that in Zambrano, as well as the subsequent CJEU cases interpreting and developing the derivative right of residence described therein, the children in question faced indefinite exclusion from the territory of the Union. In these cases, it followed inextricably (and therefore was not in dispute) that the children, if compelled to leave the UK, would be deprived of the genuine enjoyment of the substance of Union citizenship rights protected by Article 20 TFEU.
  • The  Upper Tribunal stated however in Younas, in contrast, the appellant and her daughter would be outside the Union (in Pakistan) for only a temporary period (of up to 9 months).
  • Whilst in Pakistan the appellant’s daughter would be deprived of the enjoyment of the substance of her Union citizenship rights. The deprivation she would face, however, was only theoretical because if she were to remain in the UK for this temporary period it was extremely unlikely that, as a young child attending nursery, she would engage in any activities (such as moving within the Union) where her rights as a Union citizen would be relevant.
  • The question to resolve, therefore, was whether it was enough that the child would be temporarily deprived of the genuine enjoyment of her rights as a citizen of the Union in a theoretical sense
  • The Upper Tribunal accepted that they were aware this question had not been considered in any European or UK cases. However it was noted that, in Patel, the Supreme Court, after considering the CJEU’s Zambrano jurisprudence, concluded that the test of compulsion is “a practical test to be applied to the actual facts and not to a theoretical set of facts”.
  • Given that the assessment of whether a child will be compelled to leave the Union for the purposes of Article 20 TFEU must be based on the actual facts (rather than any hypothetical or theoretical scenarios), it follows that the assessment of whether a child, as a result of being compelled to leave the territory of the European Union, will  be deprived of his or her genuine enjoyment of the rights conferred by Article 20 TFEU in accordance with Zambrano falls to be assessed by considering the actual facts (including how long a child is likely to be outside the territory of the Union), rather than theoretical possibilities.

The Upper Tribunal concluded that it was not contrary to the principle in Zambrano for the appellant’s daughter to be compelled to leave the UK with the appellant because she and the appellant would re-enter the UK several months later and any loss of enjoyment of the substance of her Union citizenship rights (which will be limited to that temporary period) will only be theoretical.

( E). 276ADE(1)(vi) – very significant obstacles to integration to life in Pakistan

It was argued on behalf of Younas that her removal would be disproportionate because she met the requirements of the Immigration Rules of Paragraph 276ADE(1)(vi). It was put forward that as the appellant had never lived, and had no family or accommodation, in Pakistan, there would be very significant obstacles to her integration in Pakistan.

Due to her background and family connections in Pakistan, the Appellant would be an “ insider” in Pakistan:

The Upper Tribunal rejected the appellants claim for the following reasons:

  • at the date of  her application  the appellant would, by her own account, have been able to return to the United Arab Emirates, a country in which she had lived nearly all her life and in which she had close family. She would not face very significant obstacles integrating into the United Arab Emirates.
  • The Upper Tribunal made a reference to Kamara v SSHD [2016] EWCA Civ 813  in which Sales LJ explained that the concept of integration is a broad one: “The idea of integration calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it so as to have a reasonable opportunity to be accepted there, to be able to operate on a day by day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life” .
  • Although the appellant had never lived in Pakistan and would consequently face some difficulties and challenges establishing herself in the country, she was familiar with the language, culture, religion and societal norms of Pakistan, having grown up in a Pakistani family and within the Pakistani community in Dubai. She also had maintained a connection with extended family in Pakistan. Given her background and family connections, the appellant would be an insider in Pakistan, in the sense that she would have an understanding as to how life is carried on and the ability to integrate and be accepted. The difficulties and challenges she would face integrating fell a long way short of being “very significant obstacles”.

On the facts of the appeal, there would not be very significant obstacles to integration in Pakistan whether the appellant remained there permanently or for a short period.

Conclusion

Section 117B(6)(b) simply  requires consideration whether,” it would not be reasonable to expect the child to leave the United Kingdom”. 

It is doubtful the Upper Tribunal was entitled to  further interpret that subsection as requiring  consideration of whether the British citizen child’s  departure would be temporary or indefinite.  

The same applies  in relation to Zambrano conclusions  that as  exclusion from the UK  would only be temporary, the loss of enjoyment of the substance of the British child’s Union citizenship rights would only be theoretical.

The Upper Tribunal acknowledged that the question whether it was enough that the child would be temporarily deprived of the genuine enjoyment of her rights as a citizen of the Union in a theoretical sense had not been considered in any European or UK cases.  Why not  refer such a question then?

The Upper Tribunal acknowledged when considering the reasonableness test in section 117B(6 )(b) that as per KO(Nigeria),  conduct and immigration history of the child’s parent(s) was not relevant.  The problem however was that all this adverse history and conduct had already been factored into the equation of the overall case when reaching conclusions on the Chikwamba argument. This led the Tribunal to conclude at paragraph 98 of their judgement that, We agree with Mr Lindsay that, in the light of this immigration history, the public interest in the appellant’s removal from the UK is strong…. the appellant, in these circumstances, to leave the UK in order to make a valid entry clearance application as a partner, far from being merely a disruptive formality, serves the important public interest of the maintenance of effective immigration controls”.  

The reasonableness and the compulsion test were satisfied on the facts of the case.

Even if  the Appellant’s claim failed under the Immigration Rules  and on the Chikwamba arguments,  since different tests applied, the Appellant could have succeeded in her appeal based on other arguments had the Upper Tribunal not gone down the road of  introducing the new further extended considerations that it did  into section 11B(6)(b) and on Zambrano issues.

Overall, having regard to the Upper Tribunal Panel’s approach to all the grounds Younas sought to rely upon,  it appears, she had no hope at all of ever succeeding in any of her claims.

Had Younas initially applied for leave to remain as a partner ( and parent) by reference to her relationship with British citizens family members after the expiry of her visitor visa, could a different outcome have ensued?

Yes, possibly, firstly because she would then be caught by the provisions of Appellant FM and secondly before a different Panel of the  Upper Tribunal, it is likely her claim could have  succeeded on at least one of the arguments she put forward.

The factual context within which the applicability of Chikwamba was considered in Younas, sours the outlook somewhat, however it is important to recall that each case is considered based on individualised circumstances.  The adverse credibility issues in Younas tainted the Upper Tribunal’s approach and inevitably impacted upon whether she was able to show that the insurmountable obstacles test was met. Her immigration history and conduct affected Question 3 Chikwamba considerations as illustrated by the Upper Tribunal at paragraph 98 of their judgement.  As Younas was found able to temporarily return to Pakistan and apply for entry clearance as a spouse,  this finding  and expectation of temporary exclusion affected and spurned on the Upper Tribunal’s approach to the section 117B(6) aspects and Zambrano, with a gloss put on the relevant tests and principles applicable to those provisions.

The basis upon which Younas’s claim foundered does not rule out continued and strengthened reliance on Chikwamba principles in other cases – regardless of the Upper Tribunal’s approach to the circumstances of her appeal.