CHIKWAMBA CASE

Does anyone know the answer to this - If an overstayer is successful in a spouse application based on chikwamba is the visa likely to be Discretionary Leave or a Spouse Visa? Also if my 13yr old receives DL based on my application what will happen to her when she becomes 18 and has not yet qualified for ILR? Will they ask her to leave the country? thanks>

You would be granted Discretionary Leave, not a spouse visa.
I very much doubt that your child would be asked to leave once she reaches 18 if she was granted DL with you, but if it is possible to go back to your country to apply for Entry Clearance and if you meet the criteria under the Immigration Rules you are likely to get your leave quicker and qualify for ILR sooner than if you waited for the HO to make a decision on your Article 8 claim.

For a start off Chikwamba success stories are rare as hen's teeth. I have stated the reasons for this elsewhere on the forum.
Let's assume your case is simple - you are from ZIM have been allowed to marry in the UK and now want to stay on under the spouse visa - in other words meet the C case 100%. You will be granted a spouse visa as if you had applied and been granted in ZIM. This assumes you meet the spouse visa requirements as set out in the immigration rules. (That information is wrong - UKBA is NOT granting spouse visas as a rule, DL is being granted which obviously takes a far longer route to ILR)

As for your daughter, she is a dependent on your spouse visa. When she gets to 18 she is on her own and will have to fend for herself in immigration terms.

Not prepared to guess what the situation will be in 5 years when she is due to apply for status in her own right.

Thanks for the response. Greatly apprectiated!

Frontier Mole wrote:For a start off Chickwamba success stories are rare as hen's teeth. I have stated the reasons for this elsewhere on the forum.
Let's assume your case is simple - you are from ZIM have been allowed to marry in the UK and now want to stay on under the spouse visa - in other words meet the C case 100%. You will be granted a spouse visa as if you had applied and been granted in ZIM. This assumes you meet the spouse visa requirements as set out in the immigration rules.

As for your daughter, she is a dependent on your spouse visa. When she gets to 18 she is on her own and will have to fend for herself in immigration terms.

Not prepared to guess what the situation will be in 5 years when she is due to apply for status in her own right.

Wow! Not a bad time to be Zimbabwean! Spousal visa while others from different countries only get DL? Not fair! But then again, life isn't fair.

If a Zimbabwean can be granted spousal visa, then others from different countries should get it too. If not, i'll kick a fuss with echr article 14!

Twin
Only ZIM has the ruling no other country has managed to be placed in the same position. DRC is my bet for the next one to benefit from C. BUT remember the biggest obstacle was the refugee status the husband had so he could not return. This is the crux of the case with a bit of icing on humanitarian grounds. That’s why I see so many reps trying their luck just to be blown out of the water. In 99% of cases the return to the country of origin is not an insurmountable obstacle. I fail to see why so many people thought this case was going to open the flood gates for in country visa applications as opposed to returning home.

Article 14 will not engage in this instance as the circumstances of allowing an in country application are so narrow and specific they do not impinge on the rights and freedoms of those already residing in the EEA. I can see where you are coming from, why should ZIM applicants get this concession while others do not. It comes down to individual and country circumstances. Even if someone was to pursue an Art 14 claim, given the higher article number the less likely the chance of success. If you fail on Art 8 your chances of success on Art 14 are akin to a snowball in hell.

Frontier Mole wrote:Twin
Only ZIM has the ruling no other country has managed to be placed in the same position. DRC is my bet for the next one to benefit from C. BUT remember the biggest obstacle was the refugee status the husband had so he could not return. This is the crux of the case with a bit of icing on humanitarian grounds. That’s why I see so many reps trying their luck just to be blown out of the water. In 99% of cases the return to the country of origin is not an insurmountable obstacle. I fail to see why so many people thought this case was going to open the flood gates for in country visa applications as opposed to returning home.

Article 14 will not engage in this instance as the circumstances of allowing an in country application are so narrow and specific they do not impinge on the rights and freedoms of those already residing in the EEA. I can see where you are coming from, why should ZIM applicants get this concession while others do not. It comes down to individual and country circumstances. Even if someone was to pursue an Art 14 claim, given the higher article number the less likely the chance of success. If you fail on Art 8 your chances of success on Art 14 are akin to a snowball in hell.

Frontier Mole

there was also a caselaw in the Court of Appeal , AB Jamaica v SSHD which was decided on 6 december 2007 which says that it was disproportionate to expect a British Citizen to imigrate to a country , the country in question was jamaica where he has neither lived or has accessible roots (par 31) so i am sure those also married to british citizen born and lived here all their life will benefit and can use this caselaw which a lot of people are using in court and winning their article 8 appeals. here is the link of the case below :

http://www.bailii.org/ew/cases/EWCA/Civ/2007/1302.html

Frontier Mole wrote:Twin
Only ZIM has the ruling no other country has managed to be placed in the same position. DRC is my bet for the next one to benefit from C. BUT remember the biggest obstacle was the refugee status the husband had so he could not return. This is the crux of the case with a bit of icing on humanitarian grounds. That’s why I see so many reps trying their luck just to be blown out of the water. In 99% of cases the return to the country of origin is not an insurmountable obstacle. I fail to see why so many people thought this case was going to open the flood gates for in country visa applications as opposed to returning home.

Article 14 will not engage in this instance as the circumstances of allowing an in country application are so narrow and specific they do not impinge on the rights and freedoms of those already residing in the EEA. I can see where you are coming from, why should ZIM applicants get this concession while others do not. It comes down to individual and country circumstances. Even if someone was to pursue an Art 14 claim, given the higher article number the less likely the chance of success. If you fail on Art 8 your chances of success on Art 14 are akin to a snowball in hell.

Fair enough, but the mere fact that an applicant applied outside the rules means that they cannot win an appeal under immigration rules and the caseworker cannot grant spousal visa?

This is still not a fair judgement if it only applies to Zimbabwe. It is what it is: discrimination!

AB rarely affords a defense for not considering returning with a spouse to another country. The only cases coming to court now are where the marriages pre dates the COA requirement. Everything after the introduction of the COA falls naturally as the parties were aware of the immigration status of the people involved. There is one exception - see final comment below.

There are a few good pointers in AB but they are usually disposed of since the changes in the immigration rules and subsequent cases. Policy DP 3/96 has gone now in any event.

The biggest issue for use of AB is where enforcement action had not commenced at the time of marriage. Then it is a strong case. For those in the business you will have noted that IS151A or B get served immediately and without hesitation. This is to stop the clock for immigration purposes and frustrate future AB type claims. The requirement to seek COA for marriage also kills off the future route to AB as a defense. The final block will be the removal of the Anglican Church to perform marriages without the need for COA.

ps - Winning an appeal on HR grounds is a bit of a hollow victory as it confers Discrectionary Leave only and hence a 5 year wait at best for ILR.

Frontier Mole wrote:AB rarely affords a defense for not considering returning with a spouse to another country. The only cases coming to court now are where the marriages pre dates the COA requirement. Everything after the introduction of the COA falls naturally as the parties were aware of the immigration status of the people involved. There is one exception - see final comment below.

There are a few good pointers in AB but they are usually disposed of since the changes in the immigration rules and subsequent cases. Policy DP 3/96 has gone now in any event.

The biggest issue for use of AB is where enforcement action had not commenced at the time of marriage. Then it is a strong case. For those in the business you will have noted that IS151A or B get served immediately and without hesitation. This is to stop the clock for immigration purposes and frustrate future AB type claims. The requirement to seek COA for marriage also kills off the future route to AB as a defense. The final block will be the removal of the Anglican Church to perform marriages without the need for COA.

ps - Winning an appeal on HR grounds is a bit of a hollow victory as it confers Discrectionary Leave only and hence a 5 year wait at best for ILR.

frontier mole

so do you think HO will find it proportionate to send a British Citizen to a country like for example Zimbabwe to resume family life there. i dout it the courts will accept it. so do you think Chikwamba case only helps Zimbabwean who are married to refugees or Zimbabweans as a whole (either overstayers or failed asylum seekers )who have established a
family life in UK. so for example if you are a failed asylum seeker from Zimbabwe married to a UK citizen before the need COA and you do not have a child do you think the person will benefit from Chikwamba from your own opinion.

ZIM cases are going no where at the moment. No one is being sent back regardless of their position, failed asylum or people without status for whatever reasons. It is not the official HO line but it is just not happening at the moment. I believe that criminal deports will still happen but ZIM's in general seem not to commit offences where criminal deport would apply.

The Chikwamba case at this time ensures that in country ZIM visa applications are effectively to be dealt with in country. The adage of "go home" to apply is what the case was really about. The court found it was not a viable position given the PARTICULAR circumstances of the case. It is holding good at the moment. However if the position in ZIM changes for the better the decision will fall as it is/was a country guidance case. That means it is only good while the circumstances that prevailed at the time of the appeal hearing still apply in the future. Say Mr. M walks away from it all and MDC take power and things suddenly get better then Chikwamba is effectively set aside.

As for all the scenarios you gave, not worth speculating about because until someone is actually going to be removed it is hard to tell what the stance of the HO will be. The actual physical removal of individuals, if it happens, will be the marker. If removals start again it is likely Chikwamba will have had its day and it is business as usual. Those married to UK Cit's prior to COA will no doubt rely on AB. Those married after COA will be in an untested area. The passing of time and individual circumstances will dictate each case. Given the COA and the fact that the immigration status was precarious no doubt the HO will say that there is the alternative to go back with the ZIM spouse. The trouble with that little gem is that if ZIM was to turn around for the better tomorrow it will take decades to repair the damage done to the country.

Just to add to the mix - there is a major ZIM case awaiting a decision. It will more than likely knock out any hope of removals in all bar the most exceptional cases, which applies in any event asylum or not. Essentially it will become a UK self imposed Rule 39 set up.

If the case states there are to be no administrative removals in the current circumstances it will kill off any hope of removing the estimated half a million ZIM's in the UK. That is the good news.

The bad news - if things change for the better even those with asylum status but NOT ILR will become removable. This is why ZIM's are not given discrectionary leave or allowed to work. No leave = no route to ILR! In effect keeping them in as tenuous position as possible to encourage them to return if / when things do turn around. This is learned experience from past experience with Kosovo, Iraq and Afghanistan. In effect never say never when considering a country’s future position.

I bet there are a few thousand ZIM's out there counting down the clock to ILR if they have asylum status.

Frontier Mole wrote:Just to add to the mix - there is a major ZIM case awaiting a decision. It will more than likely knock out any hope of removals in all bar the most exceptional cases, which applies in any event asylum or not. Essentially it will become a UK self imposed Rule 39 set up.

If the case states there are to be no administrative removals in the current circumstances it will kill off any hope of removing the estimated half a million ZIM's in the UK. That is the good news.

The bad news - if things change for the better even those with asylum status but NOT ILR will become removable. This is why ZIM's are not given discrectionary leave or allowed to work. No leave = no route to ILR! In effect keeping them in as tenuous position as possible to encourage them to return if / when things do turn around. This is learned experience from past experience with Kosovo, Iraq and Afghanistan. In effect never say never when considering a country’s future position.

I bet there are a few thousand ZIM's out there counting down the clock to ILR if they have asylum status.

so do you know when this Zim major decision is goin to be made. is it the HS case you are talking abt.

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