Secretary of State for the Home Department v Steven Richard Forman

In an Article 8 proportionality assessment, an applicant’s self-sufficiency does not diminish the public interest in firm immigration control. Its legal significance is that dependency on public funds fortifies that public interest.

Sections 117B and 117C of the Nationality, Immigration and Asylum Act 2002 contain mandatory but non-exhaustive considerations. A tribunal may consider further factors only if they properly bear on the public-interest question. It must address every applicable statutory consideration and give effect to the requirement to give little weight to private life formed while immigration status was precarious.

A determination must demonstrate that the statutory requirements have been given full effect.

The Secretary of State refused Dr Forman, a United States citizen and professional musician, a variation of leave to remain. He could not meet paragraph 276ADE of the Immigration Rules. He relied instead on his Article 8 private life, including his long residence in Scotland, professional work and substantial support from colleagues and friends.

The First-tier Tribunal allowed his appeal on proportionality grounds. The Secretary of State appealed, contending that the judge had wrongly treated self-sufficiency and societal benefit, and had failed properly to apply the statutory public-interest considerations, particularly the precarious nature of the private life.

The Upper Tribunal had to decide whether the First-tier Tribunal’s determination contained material errors of law.

1. Appeal allowed. The First-tier Tribunal’s determination contained material errors of law and was set aside. The Upper Tribunal retained the remaking of the decision.

2. The First-tier Tribunal did not err merely because it considered the claim outside paragraph 276ADE of the Immigration Rules. Where it is accepted that an applicant cannot meet the Rules, the Rules ordinarily provide the backdrop to the separate Article 8 assessment. Nor had the judge failed to recognise that success outside the Rules is rare.

3. It was permissible to treat the respondent’s positive contribution to society as a factor favourable to him in the proportionality balance. Such contribution may further a public interest capable of being balanced against the public interest in firm immigration control.

4. However, the judge materially erred by treating the respondent’s self-sufficiency as mitigating his inability to satisfy the financial requirements of the Rules and as weakening the public interest in immigration control. Self-sufficiency does not dilute that public interest. Financial dependence instead enhances and fortifies it.

5. The judge also failed to give the required effect to section 117B of the Nationality, Immigration and Asylum Act 2002. The statutory list is not exhaustive, but every listed consideration must be addressed. In particular, all of the respondent’s United Kingdom private life had been formed while his immigration status was precarious. Section 117B(5) required that it be given little weight. The determination neither expressly acknowledged nor applied that requirement.

6. The statutory errors were material. A tribunal need not use a rigid sequence, but its reasons must show that each applicable statutory consideration has been evaluated and given full effect.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision for material error of law, and directed submissions on remaking.
• First-tier Tribunal: Allowed Dr Forman’s appeal against the refusal of his application for variation of leave to remain. No citation is stated.
• Secretary of State: Refused the application on 25 September 2014 under paragraph 276ADE of the Immigration Rules and outside-the-Rules Article 8 consideration.