Julie Reah, R (on the application of) v The Secretary of State for the Home Department

In an Article 8 assessment, the distinction between family life and private life is not determinative where the proportionality factors are the same. The decision-maker must instead assess whether removal would have consequences sufficiently compelling to outweigh the public interest.

A full separate Article 8 assessment outside the Immigration Rules is unnecessary only where the Rules have addressed all issues raised by the relationship relied upon. A relationship falling outside the definition of partner may therefore require consideration outside the Rules. Nevertheless, a relationship formed when leave was precarious or unlawful attracts little weight under Nationality, Immigration and Asylum Act 2002. A later full consideration of a child’s interests may render an earlier omission academic where it could not affect the outcome.

The applicant, a Canadian national, sought judicial review of the Secretary of State’s refusal of leave to remain, made on 8 November 2014. She accepted that she could not meet either the partner route in Appendix FM or the private-life requirements in paragraph 276ADE(1) of the Immigration Rules.

She relied on her close relationship with her three adult stepchildren, including one with ADHD, her relationship with a British partner, and the interests of her partner’s child. She contended that the Secretary of State had failed properly to consider those matters outside the Rules under Article 8 and had breached section 55 of the Borders, Citizenship and Immigration Act 2009.

The central issue was whether any shortcomings in the decision-making made the refusal unlawful or could have produced a different Article 8 outcome.

1. The judicial-review claim was dismissed. The refusal letter was brief and was not a model of reasoning, but no asserted defect made the refusal unlawful or capable of affecting its outcome.

2. The Secretary of State had implicitly accepted that Article 8 was engaged by the applicant’s private and family life with her adult stepchildren. It was unnecessary to decide conclusively whether their relationship was family life rather than private life. The proportionality factors were the same, and the material question was whether removal would be disproportionate.

3. The Secretary of State wrongly appeared to equate dependency with minority. Adult children may retain emotional dependency before making their own way in the world. However, a decision-maker need not address every item of evidence. On the evidence before the Secretary of State, there was no sound basis for finding an impact beyond that normally expected from separation between a parent and adult children. The asserted circumstances were therefore not exceptional or compelling in the required sense.

4. The approach in R (Nagre) v SSHD [2013] EWHC 720 (Admin) and Singh and Khalid v SSHD [2015] EWCA Civ 74 did not excuse consideration outside the Rules. Appendix FM did not address all issues arising from a close, non-cohabiting relationship which fell outside its definition of partner. Yet the relationship was formed when the applicant had no expectation of remaining and, for most of its duration, while she was unlawfully present. Under section 117B of the Nationality, Immigration and Asylum Act 2002, it attracted little weight and could not make removal disproportionate.

5. Section 55 was engaged because the partner’s child formed part of the factual matrix. Although the original refusal did not address the child, the pre-action response gave full consideration to his interests. The applicant had no formal responsibility or active upbringing role, and neither the child nor his father had to leave the United Kingdom. The earlier omission was academic and could not justify quashing the refusal.

• Upper Tribunal (Immigration and Asylum Chamber): judicial review of the Secretary of State’s refusal of leave to remain dated 8 November 2014; the claim was dismissed.