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20 JUL 2012

R (on the application of Chiwondo) v Secretary of State for the Home Department [2012] All ER (D) 146 (Jun)

Immigration - Leave to remain - Article 8

There was a reasonable prospect of the Claimant successfully demonstrating that her removal to Malawi would constitute interference with her Article 8 ECHR rights.

22 June 2012

Administrative Court

David Holgate QC (extempore judgment)

The Claimant, a Malawi citizen, entered the UK in May 2003 on a student visa. Leave to remain was extended until 2009. In 2009 the Claimant applied for further leave to remain. The application was refused. A further application was made in February 2010, but this application was also refused. Notice that the Claimant was an overstayer was served on her in October 2011, and she was detained pending removal in November. The Claimant made representations to remain on Article 8 of the European Convention on Human Rights grounds. The Defendant later certified that claim as clearly unfounded.

(1)        The Claimant applied for judicial review of this refusal. The principle issues were identified as

(a)        whether the proposed removal would constitute an interference with the exercise of the Claimant's right to respect for her family life;

(b)        if so, whether such interference would have consequences of such gravity as potentially to engage the operation of art 8; and

(c)        whether such interference would be proportionate to the legitimate public end sought to be achieved (the proportionality issue).

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