The Secretary of State for the Home Department v Treebhawon and Ors

Where a non-offender cannot satisfy the Article 8 regime in the Immigration Rules, leave outside the Rules requires compelling circumstances, rather than the higher test applicable to foreign national offenders. Under Nationality, Immigration and Asylum Act 2002, section 117B(4) and (5) normally require little weight to be given to private life formed during unlawful or precarious residence. Exceptionally, compelling features of that private life may justify greater weight in order to give proper effect to Article 8.

For paragraph 276ADE(1)(vi), integration is a broad evaluative concept. Mere hardship, difficulty, upheaval or inconvenience, even cumulatively, will generally not establish very significant obstacles to integration.

The Secretary of State appealed against a First-tier Tribunal decision promulgated on 17 July 2015 which had allowed the family’s appeals under the Immigration Rules and Article 8 ECHR. The family comprised a Mauritian father and four children who had lived in the United Kingdom, largely unlawfully, for differing periods.

In Part 1, the Upper Tribunal held that the First-tier Tribunal had wrongly allowed the eldest child’s appeal under paragraph 276ADE because the seven-year residence requirement fell to be assessed at the date of application. That error was the foundation of the other family members’ successful Article 8 appeals, so all decisions were set aside.

On remaking, the Tribunal considered whether the father met paragraph 276ADE(1)(vi), and whether the family nevertheless established a disproportionate interference with private life under Article 8. The central issue was whether their circumstances were sufficiently compelling to outweigh the statutory public interests favouring removal.

1. The Secretary of State’s appeal was allowed. The First-tier Tribunal’s decision was set aside. On remaking, the family’s appeals were dismissed.

2. The eldest child could not meet the seven-year residence condition in paragraph 276ADE. The relevant date was the date of the application to the Secretary of State, not the date of the First-tier Tribunal’s decision. The First-tier Tribunal’s contrary conclusion infected its proportionality assessment for the other family members, since it depended entirely on the erroneous conclusion that the eldest child could remain.

3. In Part 1, the Tribunal held that section 117B(4) and (5) of the Nationality, Immigration and Asylum Act 2002 were directions as to the weight to be given in the Article 8 balance, rather than freestanding parliamentary statements of the public interest. It also held that, where the conditions in section 117B(6) were met, the other public-interest considerations in section 117B(1) to (3) did not apply. The preface records that MA (Pakistan) [2016] EWCA Civ 705 was subsequently binding on section 117B(6).

4. For the remaking, the applicable Article 8 test for non-offenders outside the Rules was compelling circumstances. This was a lower threshold than the “very compelling circumstances” test for foreign national offenders. The statutory direction to give little weight to private life established unlawfully or precariously normally applied, but could exceptionally be displaced by specially compelling private-life features.

5. The father did not meet paragraph 276ADE(1)(vi). Applying Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813, integration required a broad assessment of whether he could participate in Mauritian society and rebuild a meaningful private life there. His language skills, long prior residence, family links, education and ability to work meant that return would not create very significant obstacles.

6. The family could remain together on return to Mauritius. Their educational progress, private lives and the children’s best interests were important, but their reliance on public funds, unlawful residence, likely ability to reintegrate, and the public interest in effective immigration control meant that the circumstances did not meet the compelling threshold. The Tribunal observed, without deciding the issue, that removal in the middle of the school year would be a powerful proportionality consideration.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal decision, and remade it by dismissing the family’s appeals: [2017] UKUT 13 (IAC).
• First-tier Tribunal: Allowed the eldest child’s appeal under the Immigration Rules and the other family members’ appeals under Article 8 ECHR. Its decision was promulgated on 17 July 2015 and was set aside by the Upper Tribunal.