TE v Secretary of State for the Home Department

Paragraph 395C of the Immigration Rules identifies factors to which the decision-maker must have regard. Those factors are not requirements or threshold conditions that an applicant either satisfies or fails. The decision-maker must consider all relevant factors, whether listed or not, and weigh liability to administrative removal and effective immigration control against the personal circumstances supporting continued residence. The assessment is properly undertaken as a balancing exercise, although paragraph 395C contains no express presumption of removal. Its operation may overlap with Article 8, but it can require consideration of other rights, including protection from persecution.

The appellant, an Eritrean national who had arrived in the United Kingdom as a minor, challenged refusal of further leave to remain. Her asylum appeal had failed, but she received discretionary leave until shortly before her eighteenth birthday. Her later application was refused, and the Tribunal dismissed her appeal.

In an earlier decision in the same proceedings, the Court of Appeal held that paragraph 395C required consideration and remitted the matter for representations and reconsideration. The Secretary of State again refused leave, and Senior Immigration Judge Hanson dismissed the resulting appeal. The issue before the present court was whether he had applied the wrong legal test under paragraph 395C.

The Court of Appeal unanimously dismissed the appeal. Stanley Burnton LJ gave the judgment, with Patten LJ and Black LJ agreeing.

1. Paragraph 395C does not set requirements which an applicant must meet. The listed matters, including age, residence, connections, personal history, domestic circumstances, criminal record, compassionate circumstances and representations, are factors to which regard must be had. Their weight depends on the circumstances. The non-exclusive nature of the list confirms that other factors may also support or oppose removal.
2. The provision operates in the context of paragraphs 395A and 395B and section 10 of the Immigration and Asylum Act 1999. It applies where the person has no entitlement to remain under another rule or applicable legislation and is liable to administrative removal. The decision-maker must decide whether, despite that liability and the public interest in effective immigration control, the person should nevertheless not be removed.
3. That assessment involves weighing the liability to removal against the personal factors making continued residence appropriate. The absence of an express presumption in paragraph 395C, unlike paragraph 364, does not prevent that balancing exercise from being inferred from the provision’s context. The Senior Immigration Judge had therefore applied the correct legal approach.
4. The court noted that the result under paragraph 395C may often be similar to the result under Article 8, because the listed factors are relevant to both. Paragraph 395C concerns removal and may also require consideration of rights beyond Article 8, including the risk of persecution on return. This was comparative guidance rather than a basis necessary to the outcome.
5. Whether the court would have reached the same factual conclusion was irrelevant. The appeal concerned legal error, and the Senior Immigration Judge had considered the factors cumulatively without error.

The appeal was dismissed.

• Court of Appeal (Civil Division): The present appeal from the Upper Tribunal was dismissed.
• Court of Appeal (Civil Division): In an earlier decision in the same proceedings, [2009] EWCA Civ 174, the court held that paragraph 395C should have been considered and remitted the matter for representations and reconsideration.
• Upper Tribunal, Immigration and Asylum Chamber: Senior Immigration Judge Hanson dismissed the appellant’s appeal after reconsideration under paragraph 395C.