SI v The Secretary of State for the Home Department

An appeal against refusal to vary leave, curtailment of leave, or variation effectively curtailing leave carries a right of appeal on human-rights grounds. A human-rights claim under Article 8 may be determined even though removal directions have not been issued. SA (Pakistan) & Ors v SSHD [2010] EWCA Civ 210 did not decide otherwise and did not qualify the wider construction adopted in JM (Liberia) v SSHD [2006] EWCA Civ 1402.

For adult relatives, normal emotional ties do not without more establish protected family life. Private life may be engaged, but interference can be proportionate where the individual can reasonably re-establish professional and family relationships in the country of origin and maintain contact with the United Kingdom.

The appellant, a Pakistani citizen who entered the United Kingdom as the spouse of a settled person, appealed against curtailment of her leave. She accepted that she could not meet the Immigration Rules, but relied on Article 8.

The First-tier Tribunal dismissed the appeal without considering Article 8. It considered that, because removal directions had not been issued, SA (Pakistan) & Ors v SSHD [2010] EWCA Civ 210 prevented determination of the human-rights claim. The Upper Tribunal considered whether that was correct and, if not, whether the curtailment breached Article 8.

1. The First-tier Tribunal made an error of law by refusing to determine the Article 8 claim. SA (Pakistan) & Ors v SSHD [2010] EWCA Civ 210 concerned whether refusal of variation had to be accompanied by removal directions under section 10. The Court of Appeal did not decide that an Article 8 claim could not be considered before removal directions were issued.

2. The Upper Tribunal applied JM (Liberia) v SSHD [2006] EWCA Civ 1402. A refusal to vary leave may be an immigration decision whose indirect consequence is removal for the purpose of section 84(1)(g). The same reasoning applies to curtailment of leave. The Article 8 issue therefore had to be determined.

3. The appellant had not established family life with her adult extended family in the United Kingdom. The evidence showed no dependency beyond normal emotional ties. Having had regard to the family life of other affected family members, the Tribunal reached the same conclusion.

4. The appellant had a private life through employment, colleagues and family relationships. However, she had previously studied and practised medicine in Pakistan, could reasonably re-establish her professional private life there, retained some family connections there, and could maintain contact with persons in the United Kingdom. The interference was proportionate to the State’s interest in immigration control.

5. The First-tier Tribunal’s decision was set aside only insofar as it failed to decide Article 8. The Upper Tribunal remade that issue and dismissed the appeal on Article 8 grounds. The dismissal on immigration grounds remained in force.

• Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s decision only insofar as it failed to determine Article 8, remade that issue, and dismissed the human-rights appeal.

• First-tier Tribunal: Dismissed the appeal on immigration grounds and declined to consider Article 8 because no removal directions had been issued.