Secretary of State for the Home Department v Ronak Manyika Dube

When determining an Article 8 immigration appeal, a tribunal must have regard to the specified public-interest considerations in Part 5A of the Nationality, Immigration and Asylum Act 2002. They are mandatory but non-exhaustive. The statutory provisions supplement, rather than replace, the structured Article 8 inquiry in [2004] UKHL 27.

An express citation of the statutory provisions is unnecessary if their relevant requirements have been applied in substance. A tribunal must, however, make reasoned findings on whether family life exists, assess private-life factors formed during unlawful or precarious residence, and evaluate family relationships as a whole, including material ties in the country of return. Delay may remain relevant, but it cannot displace the statutory considerations.

The Secretary of State appealed against First-tier Tribunal Judge Juss’s decision of 29 October 2014 allowing Mrs Dube’s appeal against refusal of indefinite leave to remain.

The claimant, a Zimbabwean national, had remained in the United Kingdom after becoming appeal-rights exhausted in 2005. She relied on her health, long residence, relationships with three adult daughters and grandchildren in the United Kingdom, and delay by the Secretary of State. The First-tier Tribunal held that removal would be disproportionate under Article 8.

The Secretary of State contended that the judge had wrongly assessed delay and family life, had failed to address the claimant’s precarious immigration status, and had not applied Part 5A of the Nationality, Immigration and Asylum Act 2002. The central issue was whether those defects were material errors of law.

1. Appeal allowed. The First-tier Tribunal’s decision involved material errors of law and was set aside.

2. Part 5A of the Nationality, Immigration and Asylum Act 2002 bound the First-tier Tribunal because it determined the appeal after the provisions came into force. Under section 117A(2), a court or tribunal must have regard to the enumerated considerations. They are not optional, although they are not exhaustive. Sections 117A–117D supplement the structured Article 8 approach, including the five questions in [2004] UKHL 27, principally at the proportionality stage.

3. The First-tier Tribunal’s inaccurate reference to the statutory provisions as part of the Immigration Rules was not itself material. What matters is substance rather than form. A failure expressly to cite Part 5A is not an error if the tribunal has applied the required test in substance.

4. Here, however, the judge did not address the relevant statutory considerations. The claimant had been unlawfully resident since 2005, so the considerations in section 117B concerning private life and relationships formed during unlawful or precarious residence potentially applied. Her age, health, vulnerability and length of residence also formed part of her private life. Delay could remain relevant under [2008] UKHL 41, but it could not be considered without also taking account of section 117B.

5. The judge also gave no adequate reasons for finding Article 8 family life with adult daughters and grandchildren. Proportionality required consideration of the claimant’s family relationships as a whole, including her son and two brothers in Zimbabwe. The unreasoned conclusion that removal would cause a breakdown of family life was untenable on the evidence.

6. The case was retained in the Upper Tribunal for a further hearing to remake the decision after oral evidence and cross-examination concerning the claimed dependency and relevant family relationships.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision for material errors of law, and directed a further hearing to remake the decision.
• First-tier Tribunal: On 29 October 2014, allowed the claimant’s appeal against refusal of indefinite leave to remain under Article 8.