Article 8 and Private Life: Supreme Court Confirms Bright-line Interpretation of ‘Precarious’ in Section 117B(5) of NIAA 2002

Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58 (14 November 2018)

In interpreting the meaning of “precarious” in section 117B(5) of the Nationality, Immigration and Asylum Act 2002 (as amended), whereby little weight should be given to a private life established by a person at a time when their immigration status is precarious, the Supreme Court has held that anyone present in the UK who is not a British citizen and who has time-limited leave short of indefinite leave to remain has a precarious immigration status. Lord Wilson disagreed with Sales LJ that some migrants holding limited leave to remain could have an immigration status which was not precarious. Moreover, the Justices also unanimously held that the expression “financially independent” in section 117B(3) means an absence of financial dependence upon the state. The Tanzanian appellant, Ms Rhuppiah, arrived in the UK in 1997 and renewed her student visa a dozen times. She befriended one Ms Charles, a fellow student who suffered from ulcerative colitis. They lived together since 2001 and Ms Charles provided Ms Rhuppiah accommodation in exchange for her care without which Ms Charles would face formidable difficulties and seek state care. When her leave expired in November 2009, Ms Rhuppiah was twice refused ILR because of intermittent periods of overstaying and because of using the wrong form and random changes to the Immigration Rules. The decision-maker also refused her claim outside the rules under article 8 of the ECHR.

Subsequently, FTTJ Blundell dismissed Ms Rhuppiah’s appeal since her private life in the UK had been established at a time when her immigration status had been precarious. He also determined that she was not financially independent as she depended on support from her father and from Ms Charles, who was a skilled systems engineer for the Ministry of Defence. FTTJ Blundell observed that her first ILR application failed owing to the ineptitude of her college. Moreover, her second ILR application was hampered because she used the incorrect form and enclosed the wrong fee and by the time she corrected her mistake the 14-year rule in paragraph 276B(i)(b) she sought to rely upon was deleted on 9 July 2012. FTTJ Blundell accepted that she rightly felt cheated by events. But applying Patel [2013] UKSC 72 he held that a “near miss” was irrelevant and was as good as a mile. Further appeals to the Upper Tribunal and the Court of Appeal failed but Ms Rhuppiah was granted 30 months leave to remain in February 2018 on the basis of paragraph 276ADE(1)(iii) because she had lived continuously in the UK for at least 20 years. This rendered her appeal academic but the Supreme Court heard her case because of the public importance of definitively interpreting the word “precarious” in section 117B(5).

The Supreme Court

Lords Wilson, Carnwath, Hughes, Lloyd-Jones and Lady Black allowed the appeal. Giving the sole judgment, Lord Wilson thought that Ms Rhuppiah’s friendship with Ms Charles, who depended on her for care, was a “striking feature” of her private life in the UK. Indeed, Ms Rhuppiah’s sudden departure from the UK would impact adversely on Ms Charles’s health and severely disrupt her life given that she suffers from nausea, an inability to eat, anaemia, fatigue, joint pain and reduced mobility and depends heavily both physically and emotionally on her friend. Nevertheless, rather than allowing uncertainty to prevail over varying degrees of precariousness in light of potential paths to settlement, Lord Wilson favoured the application of a bright-line approach and held that a person’s immigration status in the UK can be precarious even when he or she is lawfully present here.

(i) Meaning of Precarious

In the context of article 8 and removal, Lord Wilson traced the first use of the word “precarious” to Mitchell v UK [1998] ECHR 120 where the ECtHR said that precariousness was an “important” but “not decisive” consideration and where family life had been developed with clear knowledge of one spouse’s precarious immigration status then only in the “most exceptional circumstances” could the removal of the foreign spouse breach article 8.

The expansion of the doctrine meant that alleged family life without marriage came to be captured by it and as shown by Rodrigues da Silva, Hoogkamer v Netherlands (2007) 44 EHRR 34 the question became whether family life was created at a time when it was known that a mother’s immigration status was such that the persistence of family life with her minor Dutch daughter within the host state would from the outset be precarious. Only after applying the exceptional circumstances test did the court find a breach of article 8.

In Useinov v Netherlands [2006] ECHR 1213 the asylum-seeking applicant was allowed to live in the Netherlands while his case was pending for more than five years and the ECtHR found that it was not possible to equate his situation with a lawful stay where the authorities grant an alien permission to settle in their country. It was held that his stay was “precarious for most of it, and illegal for the remainder” and no exceptional circumstances existed. Contextually, Useinov was different because focus fell on the precariousness of the applicant’s stay and not whether the persistence of family life was known to be precarious. Nnyanzi v UK (2008) 47 EHRR 18 confirmed the distinction that permission to “settle”, as opposed to permission to stay pending determination of applications, erases the bright-line between a precarious and a secure immigration status. Butt v Norway [2012] ECHR 1905 confirmed the earlier approach and in Jeunesse v Netherlands (2015) 60 EHRR 17 the Grand Chamber authoritatively dealt with the issue further by holding that “settled migrants” were special because the subsequent withdrawal of settlement rights (owing to criminal activities) will constitute an interference with the respect for private and/or family life.

In Agyarko [2017] UKSC 11, Lord Reed examined Jeunesse and judged that the persistence of family life would be precarious if created when an applicant was in the UK unlawfully or was “entitled to remain in the UK only temporarily”. Since Part 5A of the 2002 Act provides a structured approach to the application of article 8 and aims to produce in all cases a Convention compliant end result, Lord Wilson held that:

37. It is obvious that Parliament has imported the word “precarious” in section 117B(5) from the jurisprudence of the ECtHR to which I have referred. But in the subsection it has applied the word to circumstances different from those to which the ECtHR has applied it. In particular Parliament has deliberately applied the subsection to consideration only of an applicant’s private life, rather than also of his family life which has been the predominant focus in the ECtHR of the consideration identified in the Mitchell case.

He identified that the difference in focus has required Parliament to make the adjustment that rather than inquiring into whether the persistence of family life was precarious, the inquiry under section 117B(5) is whether the applicant’s immigration status was precarious. Notably, since migrants are the core focus of statute they should be aware of the effect of their own immigration status.

In AM (Section 117B) Malawi [2015] UKUT 260 (IAC) precariousness was held to be distinct from unlawful presence. The concept was applicable to persons who are lawfully present and have a genuine expectation of settlement but require a further grant of leave. This bright-line reasoning had been encouraged in Deelah (Section 117B Ambit) [2015] UKUT 515 (IAC) and Lord Wilson judged that the approach in AM was symmetrical with the ruling in Jeunesse and the views of the Supreme Court in Agyarko. All this led Lord Wilson to hold:

44. The answer to the primary question posed by the present appeal is therefore that everyone who, not being a UK citizen, is present in the UK and who has leave to reside here other than to do so indefinitely has a precarious immigration status for the purposes of section 117B(5).

FTTJ Blundell had decided the point correctly at first instance and it was clear that Ms Rhuppiah’s immigration status would remain precarious until 2028 when she will finally be able to secure ILR. The private life she developed was precarious because it had been established predominantly at a time when she possessed limited leave to remain in the UK as a student.

(ii) Statutory Distinction

Another helpful feature of the Upper Tribunal’s decision in the AM case was its conclusion that the concept of a precarious immigration status under section 117B(5) does not include the situation of a person present in the UK unlawfully because this is expressly captured by section 117B(4).

A clear distinction had been drawn by Parliament between unlawful presence, on the one hand, and a precarious immigration status on the other hand. There was no possible overlap between these two provisions and Lord Wilson “hoped that decision-makers will no longer need to wrestle with degrees of precariousness.”

(iii) Flexibility and Section 117A(2)(a)

Court or tribunals must, under the terms of section 117A(2)(a), have regard to the considerations in section 117B. However, the provisions of section 117B do not put decision-makers in a strait-jacket which constrains them to determine article 8 claims inconsistently with article 8 itself. Therefore, Lord Wilson found that a small degree of flexibility was built into the concept of “little weight” which meant that applicants who relied on their private life under article 8 could occasionally succeed in their claims. From that angle, his Lordship applauded the analysis of Sales LJ by finding “it impossible to improve on how, in inevitably general terms” he approached the germane issue of generalised normative guidance in section 117A(2)(a) which in his words “may be overridden in an exceptional case by particularly strong features of the private life in question.”

(iv) Financial Independence and Section 117B(3)

Characterising Ms Rhuppiah’s case as “a good example of the sometimes flimsy distinction between employment and third party support”, Lord Wilson took the view that “financial independence” in section 117B(3) means an absence of financial dependence upon the state. Ms Rhuppiah was financially independent and despite being conspicuously clear on the precariousness point, FTTJ Blundell erred in holding that she was not financially independent within the meaning of section 117B(3). The ruling in MM (Lebanon) [2017] UKSC 10 weighed significantly in the balance because in those proceedings the Supreme Court held that a blanket exclusion of reliance on promises of credible third party support might result in a violation of article 8 and corresponding changes were made to the Immigration Rules.

Comment

In AM it was suggested that even a grant of ILR might render an immigrant’s status precarious if deception was used in obtaining the grant or if its holder had commenced on a course of criminal conduct which would justify its withdrawal. Such a proposition is partially supported by the ECtHR’s decision in the Butt case but Lord Wilson considered that the facts of the present case did not enable the Supreme Court to embark upon examining these possibilities.

A key point to take away from this judgment is that Ms Rhuppiah only relied on her private life with Ms Charles whereas it was possible for her to raise the family life limb of article 8 for which “there are no hard and fast rules” under tribunal case law. Even so, she would be still confronted with ruling in Agyarko whereby the persistence of family life would be precarious because it was created when she was “entitled to remain in the UK only temporarily”.

Not only does this robust judgment cogently dissect the subtleties surrounding the paradigm of precariousness, in particular Lord Wilson’s clear preference for a bright-line interpretation of precariousness lays to rest the theory that those on a lawful route to settlement enjoy a secure immigration status. Yet, given that the scheme of section 117B(5) targets only private life by turning the Strasbourg jurisprudence on its head, it is equally clear that family life developed on limited leave to remain is not rendered precarious automatically. In the final analysis, it is important to remember that despite the court’s preference for a bright-line rule the judgment is very clear that some applicants who rely on their private life under article 8 could occasionally succeed in their claims.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Court of Appeal, ECHR, Immigration Act 2014, Immigration Rules, Precariousness, Proportionality, Settlement, Tribunals, UKSC and tagged , , , , , , . Bookmark the permalink.

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