SAB v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Article 8 does not give an immigration judge a general discretion to waive the Immigration Rules merely because their application is harsh. A student may acquire private life through a course of higher education and, in an appropriate case, removal before its completion may be disproportionate.

The weight of the public interest depends on the nature of the non-compliance. A technical or minor breach near the end of a course may reduce the public interest in removal. A knowing, serious and prolonged breach of a student work condition has the opposite effect. It materially strengthens the public interest in maintaining effective, fair and predictable immigration control, and may make removal proportionate despite substantial interference with private life.

The first appellant, a Ghanaian doctoral student, and his dependant wife and son challenged the curtailment of their leave. The curtailment followed the first appellant’s employment for hours substantially exceeding the permitted weekly limit. His application for leave as a Tier 1 (General) Migrant had also been refused.

An Immigration Judge dismissed the appeal under the Immigration Rules and Article 8. There was no challenge to the Rules decision. Permission to appeal was granted because it was arguable that the judge had insufficiently considered the appellant’s private life and his ability to complete his doctorate.

The central issue was whether the Immigration Judge had made a material error of law in finding removal proportionate under Article 8 despite the appellant’s unfinished studies.

1. Appeal dismissed. The Immigration Judge made no material error of law. His decision dismissing the appeal was to stand.

2. Article 8 did not create a free-standing discretion to disregard the Immigration Rules because their effect was harsh. A student admitted for higher education may develop private life which deserves respect, and removal before a course ends may in an appropriate case be disproportionate. That principle requires a fact-sensitive balancing exercise.

3. Pankina v SSHD [2010] EWCA Civ 719 and CDS (PBS: “available”: Article 8) Brazil [2010] UKUT 00305 (IAC) did not assist a student who had seriously breached the conditions of leave. On the Tribunal’s reading, those decisions concerned technical or minor non-compliance, including a temporary shortfall in funds, where the public interest in preventing completion of studies could be reduced. They did not licence a serious breach of the Rules.

4. The first appellant’s breach was knowing, serious and long-term. He had worked greatly in excess of the permitted hours during term time, and the Immigration Judge was entitled to find that remunerative employment was driving his wish to remain. Such misconduct strengthened, rather than reduced, the already strong public interest in effective immigration control. That interest outweighed the interference with the appellant’s private life, notwithstanding his progress towards a doctorate and his pending viva.

5. The Immigration Judge’s view that the appellant might obtain a visitor’s visa for the viva was speculative and erroneous. It was nevertheless immaterial. It did not undermine the judge’s proper overall proportionality assessment, which took account of the appellant’s private life, his limited period in the United Kingdom, and the gravity of the breach.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal on error of law and upheld the Immigration Judge’s dismissal of the Article 8 appeal.
• Immigration Judge: dismissed the appellants’ appeal under the Immigration Rules and Article 8 following curtailment of leave.