Chikwamba v Secretary of State for the Home Department: HL 25 Jun 2008

The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing human rights grounds. The respondent had a policy that the applicant must return to the home country and make her application from there.
Held: The appeal succeeded. Particularly in cases involving the human rights of children caution must be exercised before requiring out of country applications.
Lord Scott of Foscote: ‘policies that involve people cannot be, and should not be allowed to become, rigid inflexible rules. The bureaucracy of which Kafka wrote cannot be allowed to take root in this country and the courts must see that it does not. ‘ and ‘it must be disproportionate to expect a four year old girl, who was born and has lived all her life here, either to be separated from her mother for some months or to travel with her mother to endure the ‘harsh and unpalatable’ conditions in Zimbabwe simply in order to enforce the entry clearance procedures.’
Lord Brown: ‘This appellant came to the UK to seek asylum, met an old friend from Zimbabwe, married him and had a child. He is now settled here as a refugee and cannot return. No one apparently doubts that, in the longer term, this family will have to be allowed to live together here. Is it really to be said that effective immigration control requires that the appellant and her child must first travel back (perhaps at the taxpayer’s expense) to Zimbabwe, a country to which the enforced return of failed asylum-seekers remained suspended for more than two years after the appellant’s marriage and where conditions are ‘harsh and unpalatable’, and remain there for some months obtaining entry clearance, before finally she can return (at her own expense) to the UK to resume her family life which meantime will have been gravely disrupted? Surely one has only to ask the question to recognise the right answer. ‘
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscot, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
[2008] UKHL 40, [2008] 1 WLR 1420, Times 26-Jun-2008, [2009] 1 All ER 363, [2008] HRLR 39, [2008] INLR 502, [2008] UKHRR 1008, [2008] Imm AR 700
Bailii, HL
Immigration and Asylum Act 1999 65, Nationality, Immigration and Asylum Act 2002 82 84, European Convention on Human Rights 8
England and Wales
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Cited by:
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These lists may be incomplete.
Updated: 10 February 2021; Ref: scu.270385