Rhuppiah v Secretary of State for the Home Department

Short, clearly delimited student leave granted on an undertaking to depart constitutes precarious immigration status for section 117B(5) of the Nationality, Immigration and Asylum Act 2002. A speculative prospect of eventual settlement does not alter that conclusion. Whether every form of limited leave is precarious remains open.

Private life established during precarious immigration status normally attracts little weight. Compelling circumstances may justify departure where that private life has a special and compelling character. Considerable weight must be given to Parliament’s prescribed approach.

English proficiency and financial independence are neutral factors under the statutory scheme. Their absence counts against the applicant. Financial independence means independence of others, rather than merely independence of the state.

The appellant, a Tanzanian national, entered the United Kingdom as a student in 1997. Her student leave was repeatedly extended until November 2009. Following the refusal of an application for indefinite leave to remain and the exhaustion of appeal rights in October 2010, her presence became unlawful.

The appellant lived with Ms Charles, a friend who suffered from ulcerative colitis and depended heavily on her care. She also undertook charitable work and maintained a relationship with her young niece. She spoke fluent English, but depended financially on accommodation supplied by Ms Charles and an allowance from her father.

The Secretary of State refused a further application for leave in June 2013. The appellant sought leave outside the Immigration Rules on the basis of her private life under Article 8 of the European Convention on Human Rights. The First-tier Tribunal dismissed her appeal in August 2014. It treated her student status as precarious, gave little weight to the private life established during that period, and treated her financial dependence as an adverse factor. The Upper Tribunal upheld that decision in December 2014.

The appeal concerned the meaning of precarious immigration status, the scope for departing from the statutory instruction to give private life little weight, and the treatment of English proficiency and financial independence under Part 5A of the Nationality, Immigration and Asylum Act 2002.

The appeal was dismissed unanimously. Permission was granted to substitute and pursue the new ground concerning the interaction between sections 117A(2) and 117B(5). The First-tier Tribunal had made no material error of law.

1. Precarious immigration status extended beyond unlawful presence. The appellant’s student leave was precarious because each grant covered a comparatively short, clearly delimited period of study and required an intention to leave afterwards. A speculative hope of further extensions or eventual settlement did not change that position. The state’s grant of lawful student leave did not constitute toleration of a person whom it could have removed. The delay reasoning in EB (Kosovo) v Secretary of State for the Home Department was therefore distinguishable. Whether every grant of limited leave short of indefinite leave was precarious remained open. Sales LJ provisionally doubted that broad proposition, regarding precariousness as potentially evaluative ([30]–[44]).

2. Part 5A required a structured approach producing an Article 8-compatible result. Parliament’s declarations that effective immigration control, English proficiency and financial independence were in the public interest were definitive on those matters. They required considerable weight but did not dictate every proportionality outcome. By contrast, provisions specifying what the public interest required prescribed outcomes once their statutory conditions and safeguards had been addressed. The foreign-criminal framework contained a very compelling circumstances safeguard; section 117B(6) prescribed non-removal where its conditions were satisfied ([45]–[52]).

3. Sections 117A(2)(a) and 117B(5), read together, required regard to the ordinary rule that private life established during precarious immigration status received little weight. That guidance could be overridden exceptionally where the private life had a special and compelling character. Compelling reasons were required to depart from Parliament’s approach. The lower threshold applicable to diocesan guidance in R (London Oratory School) v The Schools Adjudicator did not apply. The threshold could not be lower than that for departing from statutory guidance in R (Munjaz) v Mersey Care NHS Trust. A corresponding interpretation of section 117B(4) was necessary for Article 8 compatibility ([53]–[54]).

4. The appellant had argued before the tribunals that her status was not precarious. She had advanced no alternative case for overriding the ordinary weighting rule. The First-tier Tribunal was therefore entitled to apply that rule and was not required to identify the new argument for itself. Independently, any omission to consider departure would have been immaterial: the facts admitted only the conclusion that compelling circumstances were absent ([55]–[57]).

5. English proficiency and financial independence were neutral factors under Part 5A; their absence was adverse. Financial independence meant independence of others. Dependence on private supporters remained relevant because their support might cease, creating a risk of recourse to public funds. The narrower construction of independence from the state was rejected ([59]–[65]).

6. The unfortunate failure to submit an earlier application correctly did not give a near-miss argument weight in the proportionality assessment. The Upper Tribunal’s dismissal of the appeal was upheld ([26]; [66]–[68]).

• Court of Appeal (Civil Division): In [2016] EWCA Civ 803 , dismissed the appeal unanimously and upheld the conclusion that the First-tier Tribunal had made no material error of law.
• Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge E B Grant dismissed the appeal in December 2014, finding no error of law in the First-tier Tribunal’s decision.
• First-tier Tribunal: Judge Blundell dismissed the Article 8 appeal by a decision promulgated in August 2014.
• Secretary of State for the Home Department: Refused the application for leave to remain on 5 June 2013 and set removal directions.