On 14th November 2018 the Supreme Court gave judgment in the case of Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58. The effect of this decision is that:
(a) A claimant at the Immigration Tribunal who relies on their private (not family) life under Article 8 will be entitled to have only "little weight" placed on that private life if they have been in the UK without indefinite leave to remain, unless there are "particularly strong features of the private life in question"; and
(b) A claimant who is financially dependent on other people but not on the state should not have that fact held against them when assessing the public interest in their removal.
Whilst the result was a victory for the individual claimant in this case, the wider consequences of this decision will be to clarify and tighten the law in a way that will make it even harder than it already was for claimants to succeed on the basis of their private life in the UK.
Private versus family life
First of all, for those of you who may not be used to dealing in the concepts of the European Convention on Human Rights, it is important to know that Article 8 has two aspects, providing protection for both private and family life.
Private life is a wide concept which takes in personal relationships, interests and activities, as distinct from a person's public or professional life.
Family life, as you will have guessed, is a narrower concept which generally applies only to familial relationships — though the Upper Tribunal recently held in a case with unusual facts that family life did exist between non-blood relatives. More of this later.
When a case comes before the Immigration Tribunal, a common question for the Judge will be whether the immigrant's removal from the UK would be a disproportionate interference in their private and/or family life — in a sense, would the enforcement of immigration control in the given case be akin to "using a sledgehammer to crack a nut"?
But as we shall see, the Judge does not undertake an open-ended assessment. Immigration and border control is political dynamite, and in 2014 Parliament enacted legislation which trammels the way that a Judge will undertake this balancing exercise so as to give effect to what Parliament considers to be the public interest.
The facts of this case
Ms Mercy Rhuppiah, a Tanzanian national, entered the UK in 1997 with temporary leave to remain as a student. At college, she met Ms Charles, a woman who suffers from ulcerative colitis, a gravely debilitating condition. The two became close friends and since 2001 have lived together, with Ms Rhuppiah accompanying Ms Charles everywhere to make sure that she can cope, and cooking food suitable for her condition. Instead of paying her for looking after her, Ms Charles provides her with largely free board and lodging. If Ms Rhuppiah had to leave the UK, Ms Charles's health would be compromised, her life turned upside down, and she would have to turn to the state for care.
The main issue in the case was whether Ms Rhuppiah's private life in the UK would suffer a disproportionate interference in the event of her removal.
The Supreme Court noted that
it is not suggested – and there is no need to consider whether it might have been suggested – that Ms Rhuppiah pursues "family life" with Ms Charles within the meaning of article 8. [17]
We shall come back to this later.
The law on private life
So, this case concerns a person who relied on private (not family) life to argue that her removal from the UK would be disproportionate.
If a Judge of the First-tier Tribunal is met with a case like this, then they must consider the case though the prism of Part 5A of the Nationality, Immigration and Asylum Act 2002 (as inserted by the Immigration Act 2014).
Section 117 (a) (ii) of the 2002 Act requires the Judge to "have regard" to the public interest factors listed under s. 117B. Three of those factors under s. 117B are important here:
(1) The maintenance of effective immigration controls is in the public interest.
[…]
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons –
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
[…]
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
[…]
That "little weight" provision under subsection (5) is especially important. Given that a claimant's main argument will be that their removal is a disproportionate interference in their Article 8 rights, it will hugely weaken their case if the Judge places only little weight on that private life — and it is likely that the public interest in immigration control enshrined in subsection (1) will outweigh it.
The issues in this case
The two main issues in this case were as follows:
- In what circumstances will a claimant's immigration status be "precarious" for the purposes of subsection (5)?
- What is the test for whether a claimant is "financially independent" under subsection (3)?
The Court of Appeal's decision
Giving the judgment for the Court of Appeal, Lord Justice Sales (who will shortly become Lord Sales of the Supreme Court) held that:
- Ms Rhuppiah's status had been "precarious", as she had only ever had leave to remain as a student with no proper expectation that she would be allowed to remain in the UK permanently. Therefore, the Judge had been entitled to give her private life only "little weight".
- "Financially independent" means that a person is independent not only of the state but also of other people.
However, Sales LJ also made a wider comment on the meaning of "precarious" status. He said that he "doubted" whether the Home Secretary's contention that a person with a visa falling short of indefinite leave to remain would always be "precarious", saying that
Some immigrants with leave to remain falling short of ILR could be regarded as being very settled indeed and as having an immigration status which is not properly to be described as 'precarious' [CA 44]; [SC 25].
In legal parlance, this remark was non-binding obiter dictum as it did not form part of the binding ratio which was necessary to decide the judgment (since Sales LJ considered that Ms Rhuppiah's status was precarious in any event). But an obiter remark by a well-respected Judge of the Court of Appeal has persuasive force in the Immigration Tribunal nevertheless.
The Supreme Court rejected this reasoning.
The Supreme Court's decision on precariousness
First, Lord Wilson (giving the unanimous judgment of the court) stated that
It is obvious that Parliament has imported the word "precarious" in section 117B(5) from the jurisprudence of the ECtHR [European Court of Human Rights] [37].
He then considered case law from the ECtHR and cited a previous decision of the Upper Tribunal in which the concept had been interpreted as meaning that a person with temporary leave falling short of indefinite leave to remain will be considered to be "precarious", and held that
This bright-line interpretation of the word "precarious" in section 117B(5), commended by the specialist tribunal with the maximum weight of its authority, is linguistically and teleologically legitimate; and, for that matter, it is consistent with the way in which the ECtHR expressed itself … [43]
Therefore, the court concluded that
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). [44]
This means that Sales LJ's obiter remark has been disapproved.
However, the Supreme Court did approve a different aspect of the Court of Appeal's judgment. Sales LJ also said that even in the case of a claimant with "precarious" status, it was important to note that s. 117A only required a Judge to "have regard" to the public interest factors under s. 117B. This meant that
Although a court or tribunal should have regard to the consideration that little weight should be given to private life established in [the specified] circumstances, it is possible without violence to the language to say that such generalised normative guidance may be overridden in an exceptional case by particularly strong features of the private life in question [CA 53]; [SC 49].
The Supreme Court said that it was "impossible to improve" on this analysis [SC 49]. This means that there is a safety valve for more than "little weight" to be given to private life established in precarious circumstances in an exceptional case.
The Supreme Court's decision on financial independence
As for the second issue, the Supreme Court noted that the Home Secretary had now conceded that
persons were "financially independent" for the purposes of section 117B(3) if they were not financially dependent upon the state [52-53].
However, Lord Wilson also said that proving financial independence from the state is not a positive factor in favour of granting leave to remain under s. 117B (3). Rather, if you are not financially independent then this weighs against you (as you are a burden on the state), but if you are, then it is a neutral point [57].
Analysis
This decision means that future claimants who have or had temporary status in the UK are now unlikely to be able to succeed in arguing that because they believed they were on the road to settled status (e.g. they held a temporary but renewable residence card as a spouse of an EEA national), their status was not "precarious" and so their private life is not captured by the "little weight" provision under s. 117B (5).
Instead, they will just have to rely on the character of the private life itself and argue that it is so strong that it qualifies for more than little weight under para 49 of the Supreme Court decision.
The question is, what sort of private life would be this strong? In the Court of Appeal, Sales LJ said that if he had had to decide that issue in Ms Rhuppiah's case, he would not have found that it reached the threshold. However, the Supreme Court stated that whilst it was not going to go into this issue properly, Sales LJ's conclusion was
at first sight slightly surprising [50].
This will give some comfort to claimants seeking to argue that they have unusually strong private life in the UK which should meet the exception. But the Supreme Court did not go as far as to say that Ms Rhuppiah would definitely meet the test. So it remains an open question as to what sort of private life will be strong enough.
I also said at the start that I would also come back to another question.
As we saw, Ms Rhuppiah had not sought to argue that she and Ms Charles shared family life. But it is an interesting question as to whether she might have been able to establish such family life. If so, it would not have been captured by the "little weight"provision, as confirmed by the Upper Tribunal in Rajendran (s117B – family life) [2016] UKUT 138 (IAC).
In Lama (video recorded evidence – weight – Art 8 ECHR) [2017] UKUT 16 (IAC), the Upper Tribunal held that
family life denotes real or committed personal support between or among the persons concerned. Such persons need not necessarily be related by blood and, in that sense, are not a family in the traditional or conventional senses … in the Strasbourg jurisprudence, family life has been extended beyond relationships of blood, marriage and adoption [32-33].
Therefore, the fact that Ms Rhuppiah and Ms Charles were not blood relatives should not in itself prevent them from sharing family life within the meaning of Article 8.
They would have had to meet a high threshold. Whilst family life between spouses or parents and children who are under 18 is relatively easy to establish, in other cases it is necessary to show that are "more than normal emotional ties" (Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31). This is interpreted by Judges quite restrictively.
But as Ms Rhuppiah and Ms Charles lived under one roof and their relationship clearly involved a high degree of dependence, I wonder whether the facts of their case were so unusual that they might have met the test for family life.
Conclusion
In the case of a claimant resisting removal who does not have a spouse or children in the UK, it will be necessary for them to show that they have a particularly strong private life here. This will require detailed evidence as to their integration in the UK and any relationships that they have formed.
But in addition, if the claimant lives with another person in a very close relationship, then it is also worth considering whether they might be capable of meeting the requirement for family life. This will be an unusual situation. But if so, then this family life will not be captured by the "little weight" provisions and would provide a good basis on which to argue that leave to remain should be granted.