KC & Ors v Secretary of State for the Home Department

Under paragraph 317(i)(e) of the Immigration Rules HC395, “living alone” was not defined in the abstract. The court declined to prescribe general criteria because the phrase’s purpose was unclear. It held, however, that the phrase could not extend to a claimant living with healthy adolescent children capable of providing companionship and support. The “most exceptional compassionate circumstances” requirement imposes a high threshold, assessed by the degree of compassion evoked by the particular circumstances. The decision-maker may consider the general social position of similarly situated people in the country, provided that comparison does not replace individual assessment. The appeal was dismissed. The court also indicated, obiter, that the wording might require clarification by the Secretary of State and Parliament.

The appellant, a Moroccan national under 65, sought indefinite leave to remain as a dependent relative under paragraph 317(i)(e) of the Immigration Rules HC395. She had arrived in the United Kingdom with two children and relied on financial dependence, illness and her marital circumstances. The Secretary of State refused her application on 19 February 2002. An adjudicator dismissed her appeal under the Rules and on Article 8 grounds. The Immigration Appeal Tribunal dismissed a further appeal on 8 May 2006.

The appeal to the Court of Appeal was confined to the construction and application of paragraph 317. The adjudicator was the fact-finding tribunal, and the relevant date was agreed to be the date of the adjudicator’s hearing. The central issues were whether living with children aged 15 and 17 meant that the appellant was not living alone, and whether the adjudicator had applied the correct test for most exceptional compassionate circumstances.

1. Appeal and approach. The appeal was dismissed. The relevant date for assessing the requirements of paragraph 317(i)(e) of the Immigration Rules HC395 was the date of the hearing before the adjudicator. The circumstances had to be assessed on the assumption that the appellant was living abroad and by considering what her position would have been had she remained there. The adjudicator was the fact-finding tribunal.
2. “Living alone”. The court declined to give an abstract definition or general guidance on the phrase. The purpose of the requirement, considered alongside the separate requirement of most exceptional compassionate circumstances, was unclear. Guidance based on the number, age, health or relationship of co-residents risked rewriting the Rule. On the facts, however, the appellant would have lived with two healthy children aged 15 and 17. They could provide companionship and appropriate support, and there was no evidence that young people of that age in Morocco could not do so. The adjudicator was therefore entitled to conclude that she would not have been living alone. The court applied the approach in EK v SSHD [2006] EWCA Civ 926. It did not approve the support-based statement quoted from Hosan Jan v Entry Clearance Officer [2002] UKIAT 05330. Swaran Singh concerned a different requirement, relating to close relatives in the country of origin.
3. Compassionate circumstances. The phrase “most exceptional compassionate circumstances” imposes a high threshold. The relevant inquiry concerns the degree of compassion or sympathy evoked by the particular circumstances. The adjudicator considered the appellant’s illnesses, her relationship with her former husband and the social conditions she would face. His reference to other women in Morocco did not show that he had applied the wrong test. The general position of women, or the relevant class of women, in the country may be a relevant contextual factor, provided that the individual case remains the focus. The adjudicator’s conclusion was open to him on the evidence.
4. Wider observations. The court observed that the “living alone” requirement might be redundant or operate unfairly, including where a claimant lived with an abusive person or cared for someone unable to provide support. It declined to formulate general exceptions, although the presence of a baby would not necessarily defeat the requirement. The Secretary of State and Parliament were invited to consider whether the wording should be clarified.

• Court of Appeal (Civil Division): dismissed the appeal, holding that the adjudicator had made no material error in applying paragraph 317 of the Immigration Rules HC395.
• Immigration Appeal Tribunal: dismissed the appeal against the adjudicator’s determination on 8 May 2006.
• Adjudicator: dismissed the appeal against the Secretary of State’s refusal on 19 February 2002 to vary the appellant’s leave to remain.