Ansuy Devi Jamawantee Deelah & Ors v Secretary of State for the Home Department

Part 5A of the Nationality, Immigration and Asylum Act 2002 applies whenever a court or tribunal must determine an Article 8 claim arising from a decision under the Immigration Acts. It is not confined to a particular statutory ground of appeal.

Sections 117B(4) and (5) require the attribution of little weight to the specified private-life and relationship considerations. That direction lawfully codifies and reinforces established Article 8 principles.

For those provisions, private life is established throughout its development, not only at its inception. A person with limited leave as a student has a precarious immigration status because continued residence depends on a further grant of leave.

The appellants were a Mauritian family. The mother had originally entered as a visitor and then held student leave. The other appellants held dependant leave. Following unsuccessful applications for further student leave, the Secretary of State issued removal directions.

The First-tier Tribunal dismissed their Article 8 appeals. It found that the family could return to Mauritius together and that it was reasonable for the children to do so.

On appeal, the family challenged the application and construction of Part 5A of the Nationality, Immigration and Asylum Act 2002, particularly sections 117A and 117B. The central issues concerned the ambit of those provisions, the mandatory effect of the little-weight directions, the meaning of private life being established, and the meaning of precarious immigration status.

1. The appeals were dismissed and the First-tier Tribunal’s decision was affirmed. The First-tier Tribunal had not applied sections 117B(4) or (5). Its material findings instead concerned financial independence and the reasonableness of the children leaving the United Kingdom. Accordingly, the constitutional and construction challenges to sections 117B(4) and (5) could not affect the result.

2. Sections 117A to 117D apply to Article 8 assessments in appeals brought under both section 84(1)(c) and section 84(1)(g) of the Nationality, Immigration and Asylum Act 2002. There is no sensible distinction between the Article 8 principles applicable to a challenge to an immigration decision and those applicable to removal consequent on that decision. The contrary construction was strained and inconsistent with the statutory language.

3. Where applicable, section 117B(4) and (5) give an unconditional and unambiguous statutory direction to give little weight to the matters they identify. This does not impermissibly intrude upon the judicial function. Parliament may calibrate the domestic operation of Article 8 through primary legislation, and the provisions reinforce principles which courts and tribunals would in any event apply.

4. In sections 117B(4) and (5), a private life is not merely created at a single point in time. It develops progressively. “Established” therefore encompasses its continuation and development; a construction confined to its initiation would be artificial, absurd and unworkable.

5. A precarious status under section 117B(5) is not limited to temporary admission or categories carrying no expectation of further leave. It denotes a status lacking security or guarantee. Limited student leave is precarious because it expires on a specified date and continued residence depends on a further grant.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeals and affirmed the First-tier Tribunal’s decision.

• First-tier Tribunal: dismissed the appellants’ appeals against the removal decisions.