Sandrajorthy Rajendran v The Secretary of State for the Home Department

The statutory direction to give little weight to private life established while a person's status is unlawful or precarious, in section 117B(4)(a) and (5), does not itself extend to family life outside the relationships expressly identified by the statute. Those provisions remain mandatory within their defined scope.

However, sections 117A–D of the Nationality, Immigration and Asylum Act 2002 do not exhaust the Article 8 proportionality assessment. In answering the public-interest question, a tribunal must also apply established Article 8 principles. This includes the relevance of precarious family life: family life formed or developed when immigration status is precarious will ordinarily justify removal unless exceptional circumstances exist.

The appellant, a blind Canadian citizen, had entered the United Kingdom as a visitor and sought leave to remain on Article 8 grounds. She relied on her dependency upon her younger daughter, son-in-law and grandson in the United Kingdom. The respondent refused the application, concluding that care was available in Canada and that an application as an adult dependent relative should be made from abroad.

The First-tier Tribunal dismissed her appeal. It accepted that Article 8 family life existed but held removal proportionate, principally because adequate care would be available in Canada, the family had used visitor leave inappropriately, and there was a risk of recourse to public funds. It also stated that it was required by section 117B to give less weight to the family life established while the appellant's status was precarious.

The appeal concerned whether that statutory approach was legally correct and, if not, whether the error was material.

1. Appeal dismissed. The First-tier Tribunal had erred in treating section 117B(4)(a) and (5) of the Nationality, Immigration and Asylum Act 2002 as requiring less weight to be given to this appellant's family life. Those provisions address private life established during unlawful or precarious residence, and do not impose that instruction upon the adult family relationship in issue.

2. The error was not material. Sections 117A–D are mandatory considerations, but they are not exhaustive of the public-interest question under Article 8(2). A tribunal must therefore apply relevant established Article 8 principles in addition to the statutory considerations.

3. In particular, the precariousness of immigration status is relevant to family life as well as private life. Family life created or developed while a person's position in the host state is precarious will ordinarily outweigh removal only in exceptional circumstances. The appellant's visitor status was plainly precarious. The First-tier Tribunal had, in substance, conducted the wider proportionality assessment required by Article 8 and was entitled to take that feature into account.

4. The First-tier Tribunal was also entitled to find that the appellant would receive adequate care in Canada through family support, private arrangements and available services. The fact that care supplied by her United Kingdom family was better did not itself make removal disproportionate. The potential financial burden on public funds was a further relevant proportionality consideration.

5. The First-tier Tribunal's factual findings disclosed no material error of law. Its decision dismissing the Article 8 appeal therefore stood.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal and upheld the First-tier Tribunal's dismissal, notwithstanding a non-material error concerning section 117B.
• First-tier Tribunal: Dismissed the appellant's Article 8 appeal in a decision sent on 27 July 2015.