Hoomragh Chua v The Secretary of State for the Home Department

An applicant relying on paragraph 276ADE(vi) of the Immigration Rules must provide evidence that he has no social, cultural or family ties with the country of return. Length of residence in the United Kingdom, without more, does not establish that all such ties have been lost.

Where an Article 8 claim fails under the Rules, consideration outside them is required only in rare cases involving compelling circumstances not sufficiently recognised by the Rules. Ordinary private life and co-residence with adult relatives will not ordinarily meet that threshold.

The applicant, a Mauritian national, entered the United Kingdom lawfully in 2001 but had no leave from 2002. In July 2012 he applied for leave to remain outside the Immigration Rules, relying on Article 8, his lengthy residence, his life with his sister and her family, and friendships in the United Kingdom.

The Secretary of State refused the application on 12 August 2013. She found that he had not shown that he had no ties with Mauritius for the purposes of paragraph 276ADE(vi), and that there were no exceptional circumstances requiring an Article 8 assessment outside the Rules. The applicant sought judicial review, alleging inadequate reasoning and an insufficient Article 8 assessment.

1. The application for judicial review was dismissed. The refusal was rational and was open to the Secretary of State.

2. Paragraph 276ADE(vi) required the applicant to show that he had no social, cultural or family ties with Mauritius. He had spent about 37 years there and supplied no evidence that he had lost such ties. His absence from Mauritius and residence in the United Kingdom for about eleven years at the application date did not, without evidence, justify that conclusion. The Secretary of State was therefore entitled to reject the claim under the Immigration Rules (see paras [15]-[16]).

3. The contention that the Secretary of State should have made a removal decision, giving an in-country right of appeal, was not pursued. In any event, the timing of a removal decision was for the Secretary of State. The appropriate course for a person with no right to remain following refusal of leave was voluntary departure (see para [13]).

4. An Article 8 assessment outside the Rules was not required merely because the applicant had lived in the United Kingdom for a lengthy period and lived with an adult relative. Such consideration arises only in rare cases with compelling circumstances not adequately addressed by the Rules. The applicant had shown no children, settled or British partner, or other unusual feature. Even assuming that he had a private life with family members in the United Kingdom, there was no compelling circumstance requiring consideration outside the Rules (see paras [17]-[18]).

5. The Tribunal noted that sections 117A-117D of the Nationality, Immigration and Asylum Act 2002 would give little weight to private life established unlawfully or while immigration status was precarious. It was unnecessary to rely on those provisions because the claim failed independently (see para [19]). Costs of £3,200 were summarily awarded to the Secretary of State, and permission to appeal was refused.

• Upper Tribunal (Immigration and Asylum Chamber): judicial review application dismissed; the Secretary of State's refusal of leave to remain was upheld.
• Secretary of State for the Home Department: refused the applicant's application for leave to remain outside the Immigration Rules on 12 August 2013.