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.