TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department

Where a non-settled migrant establishes family life while his or her immigration status is precarious, a very strong or compelling claim will generally be required to outweigh the public interest in immigration control. Precarious status includes both unlawful and temporary residence.

A tribunal should first apply the Immigration Rules. If article 8 is engaged but the Rules are not satisfied, it must conduct a proportionality evaluation outside the Rules. The insurmountable-obstacles assessment should inform that evaluation, while considerable weight must be given to the Secretary of State’s policy. Exceptional circumstances are circumstances in which refusal would produce unjustifiably harsh consequences.

A reasoned balance sheet identifying and weighting the factors on each side is recommended, although its use is not legally mandatory.

Two non-settled migrants relied on family relationships established with British citizens while their immigration status was precarious. TZ, a Pakistani national formerly admitted as a student and post-study worker, failed to satisfy the Immigration Rules because his Tier 2 application contained the wrong occupation code and his relationship did not meet the Rules’ definition of a partner. The Upper Tribunal nevertheless considered his article 8 case outside the Rules and dismissed it.

PG, an Indian national admitted as a visitor, married a British citizen shortly after arriving. The First-tier Tribunal found insurmountable obstacles to family life continuing in India. The Upper Tribunal set that decision aside because her visitor status prevented her from qualifying under the partner route. It then dismissed her article 8 claim outside the Rules.

The joined appeals concerned the proper application of article 8, the insurmountable-obstacles and exceptional-circumstances standards, and the weight attributable to family life established during precarious residence.

1. Both appeals dismissed. The principles in R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11 disposed of the issues. Neither appellant satisfied the Immigration Rules, and neither presented exceptional circumstances capable of outweighing the public interest in immigration control.

2. The usual decision-making structure is first to apply the relevant Rules. If the claimant does not qualify under them, the tribunal must determine whether removal would breach article 8 outside the Rules. The Secretary of State may lawfully require insurmountable obstacles within the Rules and exceptional circumstances outside them. Exceptional circumstances mean circumstances in which refusal would result in unjustifiably harsh consequences.

3. Family life formed while immigration status is precarious ordinarily attracts reduced weight. Precariousness includes temporary lawful residence as well as unlawful residence. Both an overstayer and a temporary migrant lack a right to remain merely because a relationship with a British citizen was formed during their stay. A very strong or compelling claim is generally required to outweigh immigration control. Section 117 B of the Nationality, Immigration and Asylum Act 2002 also requires little weight to be given to private life or a relationship with a qualifying partner formed during precarious residence.

4. The assessment outside the Rules is a proportionality evaluation. The tribunal must give considerable weight to the Secretary of State’s policy at a general level and must then evaluate the strength of the public interest in the particular case. Where article 8 is engaged, the tribunal should assess insurmountable obstacles even if another requirement prevents success under the Rules. That assessment informs whether exceptional circumstances exist outside the Rules. Satisfaction of the Rules will positively determine the article 8 appeal, provided article 8(1) is engaged.

5. A tribunal should identify the factors favouring immigration control and those favouring private or family life, state the weight assigned to each, and give a reasoned conclusion under the applicable test. A balance-sheet structure is strongly recommended, but failure to use it is not itself an error of law.

6. TZ’s errors at first instance were immaterial because no rational tribunal could have allowed his case under the Rules. His future eligibility for entry clearance was uncertain, so Chikwamba did not govern. PG could not qualify under the partner route while present as a visitor. The Upper Tribunal properly found no insurmountable obstacles, no very strong or compelling claim, and no positive obligation to permit either appellant to remain.

• Court of Appeal (Civil Division): Dismissed both appeals from the Upper Tribunal in [2018] EWCA Civ 1109.
• Upper Tribunal — TZ: Held that the First-tier Tribunal had erred by failing to explain why the Rules were unsatisfied and by inadequately addressing article 8 outside the Rules. The errors were immaterial, and the appeal was dismissed after the Upper Tribunal undertook the required evaluation.
• First-tier Tribunal — TZ: Dismissed the appeal under the Rules and rejected the article 8 claim.
• Upper Tribunal — PG: Set aside the First-tier Tribunal’s decision because PG’s visitor status prevented reliance on the partner route. It remade the decision and dismissed the article 8 claim outside the Rules.
• First-tier Tribunal — PG: Allowed the appeal after finding insurmountable obstacles to family life continuing outside the United Kingdom.