Rhuppiah v Secretary of State for the Home Department

Part 5A of the Nationality, Immigration and Asylum Act 2002 requires courts to apply Parliament’s public-interest considerations in an Article 8 proportionality assessment. Statements that immigration control, English-language ability and financial independence are in the public interest are definitive as to those aspects, but do not dictate the outcome. The rules giving little weight to private or family life established during unlawful presence or precarious status are normative guidance. In an exceptional case, compelling circumstances may justify giving that life more than little weight. A person with successive, time-limited student leave and only a speculative prospect of settlement has precarious immigration status. English-language ability and financial independence are neutral factors; financial independence means independence from others, not merely from the state.

The appellant, a Tanzanian national, entered the United Kingdom as a student in 1997 and remained under successive grants of student leave until November 2009. Her appeal rights were exhausted on 11 October 2010, after which her presence was unlawful. The Secretary of State refused her application for leave outside the Immigration Rules, based on Article 8 private life, in June 2013.

The First-tier Tribunal dismissed the appeal in August 2014, giving little weight to private life established while her status was precarious, treating English proficiency as neutral, and finding that she was not financially independent. The Upper Tribunal found no error of law in December 2014. The central issues before the Court of Appeal were the meaning of precarious immigration status, the extent to which the little-weight provision could be displaced in an exceptional case, and the effect of English proficiency and financial independence under Part 5A.

1. Appeal dismissed. The Upper Tribunal was correct that the First-tier Tribunal had made no material error of law.
2. Under sections 117A(2) and 117B of the Nationality, Immigration and Asylum Act 2002, Parliament’s declarations that effective immigration control, English-language ability and financial independence are in the public interest are definitive as to those aspects of the public interest. They require substantial weight, but do not mandate removal or any other particular Article 8 outcome.
3. The provisions in sections 117B(4) and 117B(5), stating that little weight should be given to private or family life established during unlawful presence or precarious status, are normative guidance rather than definitive statements of the outcome. In an exceptional case, compelling circumstances may justify departure from that ordinary approach where the private or family life has a special and compelling character. The threshold is materially higher than a general discretion to depart from guidance, but lower than the statutory standard of very compelling circumstances applicable to certain foreign criminals under section 117C.
4. “Precarious” is evaluative and distinct from unlawful presence. A person with limited leave may have a settled status in some circumstances, so not every grant short of indefinite leave to remain is necessarily precarious. On the facts, successive student grants limited to the duration of particular courses, coupled with an expressed intention to leave and only a speculative hope of further leave or eventual settlement, were plainly precarious. The First-tier Tribunal was therefore correct.
5. Section 117B(2) makes inability to speak English a negative factor because of the public-interest reasons stated in the provision. Ability to speak English is neutral and does not itself support admission or continued residence. Section 117B(3) operates similarly: lack of financial independence may count against an applicant, but financial independence is neutral. The phrase means financial independence from others. The appellant’s dependence on her father and Ms Charles justified the finding that she was not financially independent.
6. The Court declined to decide whether every grant of limited leave short of indefinite leave to remain is precarious. The appeal was dismissed because the appellant’s status was plainly precarious on the particular facts, and no compelling circumstances were shown to displace section 117B(5).

1. Court of Appeal (Civil Division) [2016] EWCA Civ 803: appeal dismissed; the court held that the First-tier Tribunal had made no material error of law.
2. Upper Tribunal (Immigration and Asylum Chamber) December 2014: dismissed the appeal after finding no error of law in the First-tier Tribunal’s decision.
3. First-tier Tribunal August 2014: dismissed the appellant’s Article 8 appeal against refusal of leave to remain outside the Immigration Rules.