Court of Appeal overturns decision that Pakistani national married to British woman should return to Pakistan to apply again for entry clearance

Thursday 29 March 2018

Greg Ó Ceallaigh of the Garden Court Chambers Immigration Team was instructed by Liam Doyle at M&K Solicitors.

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Mr Tikka is a national of Pakistan, who is married to a British citizen and has leave to remain as a spouse. He was involved in a tragic road accident in which a man was killed. Although he was not at fault for the accident it transpired afterwards that his car insurance did not cover him because he was driving for work, and so he so was prosecuted for causing death while driving uninsured. Because of the circumstances of the offence he was given a community order requiring him to undertake some unpaid work.

However, the Home Office decided to curtail his leave to remain and remove him to Pakistan, even though his wife is a British Hindu and it was accepted that they could not live together there. The Upper Tribunal upheld the decision on the basis that, even though they could not live together in Pakistan, it would not be disproportionate to expect Mr Tikka to return there alone to apply for entry clearance.

The Court of Appeal overturned that decision. The Court accepted the Appellant's submission that there was "no sensible reason" for requiring Mr Tikka to make a new application from Pakistan. The fact was that such an application would inevitably be refused and lead to a new appeal, which "underscores the futility of removing the Appellant without determining, once and for all, the underlying article 8 issue." The matter has been remitted to the Upper Tribunal.

Read the full judgment: Tikka v SSHD [2018] EWCA Civ 642

Greg Ó Ceallaigh is a member of the Immigration Team at Garden Court Chambers.

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