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Understanding Chikwamba (FC)
IT IS not often that good news comes to those seeking to remain in the United Kingdom on the basis that they entered the United Kingdom as an asylum seeker and or have been refused asylum and are therefore asked to leave the UK or be removed from the United Kingdom. However, there has been a change that is considered, for many years, reasonable and most welcome as a relief. This is the story of a Zimbabwean young lady who has tried everything legally possible until now! On 25th June 2008 the House of Lords gave their opinion in the cause of Chikwamba (FC) (Appellant) v Secretary of State for the Home Department (Respondent).
Well as you might have read, I do not like using legal jargon as this may make understanding of issues too difficult for those of whom it is meant, hence I will try to break this down. House of Lords is the highest court in the United Kingdom. Once they have made a decision, or indeed voice an opinion it becomes an authority by which other lower courts such as the Asylum and Immigration Tribunal must follow. Appellant is the ordinary you and I, appealing against a decision from the Home Office, usually, we will first of all appeal to the (AIT) and in most cases before a single Judge. Respondent, on the other hand is the Secretary of State defending their decision before the same court. I hope we all know where we are now!? Then let us continue with the case of Chikwamba v SOSHD.
In a nut shell, the case concerns a 26 years old Lady who came to the United Kingdom with her younger brother and sister on 22nd April 2002 and sought asylum on the basis of her and her mother’s involvement in the opposition Movement for Democratic Change (MDC). She had left behind in Zimbabwe two children by a man from whom she was estranged; her children were living with relatives. On 5th June 2002 the Secretary of State refused her asylum claim, because her accounts of events that made her to flee Zimbabwe was not believed. On 8th June 2002 her leave to enter Britain was refused. However, because the condition in Zimbabwe had deteriorated, she (The Secretary of State) had decided to suspend removals of failed asylum-seekers to Zimbabwe.
The suspension was not lifted for some two and half years until 16th November 2004. It was during this time she was in limbo that she met, fell in love and marry Mr. Magaya on 26th September 2002 (she had known Mr. Magaya from childhood) who is equally a Refugee but who has been recognised as such, (he has been granted a full Refugee status in the United Kingdom – hence he has the right to remain here legally. On the 4th of February 2003 the Secretary of State refused Ms. Chikwamba’s claim that to remove her to Zimbabwe would breach her article 8 right of respect for her family life. In the meantime, Ms. Chikwamba had a daughter (Bianca) for her husband on 14th April 2004. (The marriage could therefore be said to be genuine and no one could, well, in their right senses say or think it was an arranged marriage – a life witness would confirm otherwise as the Daughter is the evidence that the couple are for real. However, and due to the fact that the suspension to remove failed asylum seekers to Zimbabwe was lifted in 2004, it means that all those who were supposed to have been removed to Zimbabwe can now be removed, including Chikwamba and ....(her British born Daughter), so that they may then apply for entry clearance (visa) from Zimbabwe before coming to join Mr. Magaya in the United Kingdom.
The case went to court, firstly to the AIT and then to the Courts of Appeal, both Courts ruled that the decision requesting Ms. Chikwamba to go back and make an entry clearance application from Zimbabwe was the correct decision. Let us face it. It may sound daft and ridiculous that someone who is married and settled in the United Kingdom with her Husband and her little girl should be asked to go back to Zimbabwe or indeed any country in the world, just so that they could then apply for an entry clearance (visa) before returning to the United Kingdom! “This to me is like someone who enters your house, slept over night, had breakfast, lunch and then at dinner time you just remember that the person forgot to knock the door before entering your house yesterday, hence the person must now go outside, then knock the door, and if it pleases you, you will open the door and if not then the door remains shut and he can then complain to your next door neighbour to decide if you should allow the person into your house” - DAS 2008.
Though this may sound unreal, but this is the law – maybe this is why people say the law is an “ass”. However, on the flip of the coin, why should someone be allowed to “slap” the law in the face? Afterwards the United Kingdom have the God given rights to control their borders and to let into their country only those who they wish to welcome regardless of their nationality...It is their right and it is the law. The problem here is that, law is made by the people for the people, hence there is no law if there are no people either to uphold it or to break it, if it is not broken then there will be no one to fix it! Again these and many more are my thinking and does not represent any body’s opinion.
You might have recall from some of my articles, where I mentioned the rights to private and family life – this is fundamental human right, this being so, no one should encroach on any one’s right to enjoy their private and family life, provided, you make it your private and family life and not encroaching on someone else’s territory to enjoy the fundamental rights of yours. But where you do, be sure, there will be laws in operation to stop you from that fundamental enjoyment. This is exactly what is being faced all over the world and not just in the United Kingdom. If the enshrined law did not stop you, then the general public will react to your presence in their community, this we termed discrimination – it may be silent and it may be loud. Take your mind back in the late 70’s and early 80’s in the United Kingdom, you walk in to a pub – with a view to enjoy your private life, you demand a pint of Guinness and you can see the bar man going up and down very busy doing nothing and yet ignoring your presence, you could be there for ever and you may not be served, until, well, if you are lucky, that is...someone tells you to sling your hook!! Coming back to our Chikwamba, “True it is that certain of the immigration rules specify a requirement for entry clearance (as here, requirement (v) of rule 352A and requirement (vi) of rule 281) and that rule 28 provides that an applicant for entry clearance must be outside the UK at the time of the application” per Mr. Fordham QC. Lord Scott expressed ‘astonishment that the case should have come this far’. ‘The policy which require that the appellant return to claim entry clearance, like ‘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 to it that it does not’ The decision of the lower courts were ‘clearly unreasonable and disproportionate.’
There were lots of other argument for and against the issue surrounding someone who is already in the United Kingdom and who has established a family life, that, such person should be forced to return or be removed to his country simply because it was mandatory that entry clearance must be obtained from abroad. At the end, Ms. Chikwamba was allowed to stay in the United Kingdom and the need to return or be removed to Zimbabwe to obtain entry clearance before she could resume her relationship with her husband was quashed by the House of Lords. Firstly, I say congratulations to the House of Lords and also warmest congratulation to our Chikwamba and her family. Now then, my advice is that you must not take this to mean that you can stay in the United Kingdom illegally or after you have exhausted all your appeal rights, but because you have decided to marry somebody with leave to remain in the UK, that your matter would be decided entirely on this case, far from it.
You will need to show in the first instance that the marriage is genuine and that you have not entered the marriage simply because you want to have the opportunity of sidetrack the entry clearance. It is important that the law should and must be obeyed...as we say it, no one is above the law. There are other factors involved in this case, including the fact that it will be unreasonable and disproportionate to remove Ms. Chikwamba to Zimbabwe only for her to apply for entry clearance which, if refused, will carry with it a right of appeal, again this will be heard in the United Kingdom and it will involve funds, probably to be paid for by the Government through Legal aid, so in the end the Government will not be better off financially, hence, it makes sense to prevent such a waste of public funds. Secondly, it will be inhumane to dismantle a young family, thirdly, it is not possible for her husband to follow her to Zimbabwe, this was where he ran away from in the first instance and finally, what of the child, what happens if she is taken to Zimbabwe and the situation became worse and they are unable to return to the United Kingdom?.
Each case will be decided on its own merit, and you must know your own situation before you make any move and in the meantime, if you think your case is similar to Chikwamba then you must speak to a Lawyer very very soon, What is good law today might be changed tomorrow. Good luck and stay safe out there! DAS 2008.
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