What is the Meaning of ‘Precarious’ in Section 117B(5) of the NIAA 2002?

Having already heard a string of appeals relating to the meaning of “reasonable” in section 117B(6) and the meaning of “unduly harsh” in section 117C(5) of the Nationality, Immigration and Asylum Act 2002 (as amended), recently in Rhuppiah the Supreme Court further considered the meaning of “precarious” in section 117B(5). In addition to this point of statutory construction, the Justices also examined other issues connected to the weight to be given to (i) private life established at a time when a migrant’s immigration status was precarious when conducting the balancing exercise under article 8 of the ECHR, and (ii) financial independence and proficiency in English when conducting the balancing exercise under article 8. Rhuppiah therefore adds to the gamut of complex issues that have reached the apex court four years after the commencement of the statutory machinery laid down in Part 5A of the 2002 Act, sections 117A to 117D as inserted by section 19 of the Immigration Act 2014 which entered into force on 28 July 2014 and place article 8 and public interest considerations on a statutory footing. Since statute is silent and Parliament has not defined the meaning of “precarious”, Lords Wilson, Carnwath, Hughes, Lloyd-Jones and Lady Black heard rival arguments about the correct construction of the term within the meaning of the Strasbourg jurisprudence. Rhuppiah is Tanzanian. Between 1997 and 2010 she was variously granted of leave to remain as a student but then fell out of status.

Rhuppiah lives and cares for with her friend, one Ms Charles, who has ulcerative colitis. Her brother, sister-in-law and niece also live in the UK. Upon refusal of her application for ILR in 2012, she appealed to the FTT that leave to remain ought to be granted to her under article 8 outside the rules. In light of Part 5A of the 2002 Act, the FTT found that little weight should be given to her private life with Ms Charles and her niece because it was established when her immigration status was precarious. The FTT also held that fluency in English and financial independence were neutral factors in the article 8 balancing exercise because Rhuppiah was in any event financially dependent on Ms Charles and her father for lodging and maintenance respectively. The UT also dismissed her appeal. She then appealed further on the basis that the FTT made threefold errors of law. First of all, it misunderstood that her immigration status had been “precarious”. Second, it incorrectly bound itself by the finding of precariousness by attaching “little weight” to her private life whereas it had discretion under statute to attach greater weight in her case. Third, it wrongly treated her proficiency in English and financial independence as neutral rather than positive factors in her favour.

The Court of Appeal

Sir Stephen Richards, Moore-Bick and Sales LJJ dismissed Rhuppiah’s onward appeal. “Precarious” was not, in their Lordships’ view, “a term of art” and was similar but not identical to the guidance imparted in Jeunesse v Netherlands (2015) 60 EHRR 17 whereby family life was rendered precarious from the outset where those “involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious.” Moreover, absent “exceptional circumstances”, article 8 would not be in breach.

In relation to the persistence of family life, Sales LJ (as he then was) interpreted the ECtHR’s view of precariousness independently of the presence of the foreign family member’s lawful status. Anyone with limited leave to enter or remain had clear knowledge that they “would have to leave at the end of a set period of time in the not far distant future.”

Noting the intersection of this point with the present legislation, he held that the concept of precariousness in immigration status in section 117B(5) was distinct from the concept of unlawful presence in section 117B(4). Precariousness in section 117B(5) included persons with limited leave to enter or remain who knew from the outset that their permission to be in the UK could be described as precarious. Construing the two concepts to mean the same thing would make section 117B(5) redundant.

The court rejected the submission that by virtue of allowed extensions a person on a route to settlement cannot be classified as having a precarious immigration status. Sales LJ preferred the point that, short of anything less than settlement, any temporal limit on the leave granted to enter or remain qualifies as a precarious immigration status for the purposes of section 117B(5). Connecting the precariousness of immigration status to the impact it has on the protection it affords to private life in the article 8 proportionality balancing exercise, he held that:

33. … The more that an immigrant should be taken to have understood that their time in the host country would be comparatively short or would be liable to termination, the more the host state is able to say that a fair balance between the rights of the individual and the general public interest in the firm and fair enforcement of immigration controls should come down in favour of removal when the leave expires.

Upon receiving each grant of leave, Rhuppiah had confirmed that she did not intend to stay beyond her period of study. There was no guarantee that leave would be granted or that the Immigration Rules would remain the same if another application were made in the future. Any hope of an extension was at best speculative and the hope, if any, of possibly eventually acquiring “ILR was still more remote and tenuous.” The FTT had thus been right to find that her immigration status was precarious throughout.

The approach accorded with Deelah (Section 117B – Ambit) [2015] UKUT 00515 (IAC). The public interest in maintaining effective immigration demanded that it should be not be unduly difficult to remove students when their studies ended. An alternative argument meant that leave to enter would be granted less readily to students as removing them would prove difficult. Equally, Rhuppiah was not classifiable as a “settled migrant”. Jeunesse was against her and “indicated that something a good deal more solid and long-lasting” than her flimsy status was required.

The court distinguished EB (Kosovo) [2008] UKHL 41 on the point that without a removal decision protracted delay warrants the ascription of greater weight to a migrant’s personal relationships. The rationale converged with the toleration of unlawful presence approach in Jeunesse but in Rhuppiah’s case the question of removal did not arise because she was granted leave as a student and thus the situation was readily distinguishable. Notably, the executive submitted that any grant of limited leave to enter or remain short of settlement or ILR qualifies as “precarious” for the purposes of section 117B(5). Sales LJ declined to rule upon the point, but he doubted that it did. Indeed, in his Lordship’s view, if that had been intended then:

44. … the drafter of section 117B(5) could have expressed the idea more clearly and precisely in other ways.

He read precarious to “convey a more evaluative concept” than claimed and regarded it as being the opposite of the idea that a person could be considered as a settled migrant for article 8 purposes. The article 8 context potentially supported the position that some migrants with leave to remain, but not ILR, are arguably “very settled” and they enjoy a status which cannot rightly be described as precarious. Either way it was best not to express a full view as Rhuppiah’s case failed in any event.

On the second point, Parliament’s view – such as in section 117B(1), (2), and (3) – was definitive in relation to something being in the public interest. Analysing the interaction of section 117A(2) and section 117B(5), it was quite clear from the words in the former provision that “the court or tribunal must … have regard” to the considerations in section 117B did not mean that judges had discretion whether to follow what Parliament said in those provisions.

Having regard to such considerations did not mandate a particular outcome in the article 8 balancing exercise. Specifically, section 117A(2) stated that regard must be had to the statement in section 117C(6) that, in the absence of very compelling circumstances, the public interest “required” deportation.

“Very compelling circumstances” contemplated by section 117C(3) and (6) provide “a safety valve”, with an appropriately high threshold, for exceptional cases involving foreign criminals where private and family life considerations are so strong that removal would be disproportionate and breach article 8. After applying section 117C, if a court or tribunal concludes that it is a case in which statute says that the public interest requires deportation, then it is not open to the court or tribunal to deny this by holding that the public interest does not require deportation. In MA (Pakistan) [2016] EWCA Civ 705 (discussed here), the court held that where section 117B(6) applies, Parliament had stated that the public interest does not require the person’s removal and the result (i.e. non-removal) has already been predetermined.

The interaction of section 117A(2)(a) and section 117B(5) was a “normative statement” and was “less definitive” than the contents of the other components of section 117B and section 117C. Nevertheless, applying Munjaz [2005] UKHL 58 “cogent reasons … spelled out clearly, logically and convincingly” were needed to depart from statutory guidance. Reading section 117A(2)(a) together with section 117B(5) indicated that while courts should have regard to the consideration that little weight should be given to private life established when immigration status was precarious, this guidance could be disregarded in exceptional cases where private life had a special and compelling character.

Importantly, this interpretation was necessary to prevent section 117B(5) from being applied incompatibly with article 8. It moreover meant that considerable weight should be given to the statement in section 117B(5) as to the approach which should normally be adopted. Sales LJ concluded that the threshold to displace the ordinary rule in section 117B(5) had to be equivalent to the threshold to justify a decision not to follow statutory guidance as in the Munjaz case. No compelling circumstances were evidenced to justify Rhuppiah remaining in the UK.

On the third point, it would have been a negative factor under section 117B(2) if she had been unable to speak English proficiently. Yet this did not mean that it was in the public interest for a person who could speak English to be granted leave to enter or remain. The court held that under the scheme in Part 5A, a migrant’s English speaking abilities were a neutral factor. The same was true of the financial independence provision in section 117B(3) which, following its natural meaning, referred to someone who was financially independent of others and did not include the gloss “financially independent of the state”.

Comment

The Justices lamented that it had taken four long years for such important points of statutory construction to have reached the apex court. They were obviously concerned that a great number of cases would be affected by the outcome of this appeal. Despite the existing guidance on precariousness in Agyarko [2017] UKSC 11 (discussed here) and Hesham Ali [2016] UKSC 60 (discussed here), another authoritative ruling is badly needed on the precise meaning of “precarious” in section 117 so as to clarify the ongoing confusion in the field.

Supreme Court proceedings have already given us great insight into Rhuppiah’s case. When contrasted with the applicant in Jeunesse, who only had a visit visa for 45 days, she enjoyed lengthy lawful student status and this discrepancy remains unaddressed. She argued that precarious immigration status refers to someone who has never had any leave at all. During the hearing, Lord Wilson was concerned that the outcome in Jeunesse is itself subject to the caveat of “awareness”. However, Rhuppiah’s counsel declined Lord Carnwath’s offer to consider reading awareness into statute. Instead, the focus in the appeal is that people, such as Tier 2 (General) migrants for example, may reside in the UK with a time limited immigration status but they nevertheless have a genuine expectation of acquiring ILR if they satisfy the requirements of the Immigration Rules. Key is the point that Jeunesse distinguishes between a “settled migrant” and “an alien seeking admission” (para 105). So precarious does not mean people with leave.

The government argued that the mere fact that “precarious” is used in statute does not automatically align its meaning with the Strasbourg jurisprudence. Indeed the stance taken is that, although it is compliant with the ECHR, overall section 117 represents the UK’s own immigration policy as dictated by Parliament and is not necessarily anchored in the Strasbourg jurisprudence. Intrigued by this peculiar claim, Lord Carnwath found it “weird” that Parliament had not defined the term “precarious”. Therefore, it cannot be said that precariousness does not have anything to do with ECHR case law.

In Guliyev v Russia [2018] ECHR 330, the ECtHR said that a precarious status was tied to a migrant not applying for a residence permit at all and that such a person must be classed “as being aware of the precariousness of his residence status well before he commenced his family life”. The approach is clear that the person in question was illegal throughout. By contrast, Rhuppiah had an expectation for leave to be granted as the Immigration Rules provide for her to remain. Thus her situation is different from Nunez v Norway [2011] ECHR 1047 where “serious or repeated violations … with impunity” are clearly cited as criteria that undermine the public’s respect for immigration law.