MA (Pakistan) [2009] EWCA Civ 953

Simon Canter has recently had success in this important Court of Appeal authority which clarifies the extent to which the House of Lords' case of Chikwamba applies in Article 8 cases.

MA had been a student in the UK and had married a British citizen during his time here. He fell out with his father in Pakistan to the extent that he was concerned for his safety in his home country. His leave as a student was cancelled by the Home Office after he dropped out of college and started working. He appealed against this decision on the basis that he had developed a family life in the UK with his wife.

Before the AIT the IJ had dismissed the appeal despite finding that if MA returned to Pakistan and made a 281 (spouse) application he would be likely to be granted Entry Clearance. The IJ made this decision despite citing the House of Lords' decision in Chikwamba [2008] UKHL 40 in his determination.

Sullivan LJ overturned the decision, noting that the general approach recommended in Chikwamba [of not insisting on return to apply for entry clearance] was not confined to cases involving children and "also applies to family cases more generally" (paragraph 7 of the judgment). This comment will be helpful if the Home Office attempt to enforce return to re-apply for Entry Clearance on the basis that there are no children involved.

The judgment also makes it clear that the lingering "insurmountable obstacles" test ought not to be applied (see EB (Kosovo) UKHL 41 and VW (Uganda) [2009] EWCA 5).