Onwuje & Anor v The Secretary of State for the Home Department

Article 8 may be engaged by ordinary social and community ties, and in some cases by an entrepreneur’s business where it forms part of private or social identity. Engagement does not establish a right to remain. The business-migration criteria in the Immigration Rules carry substantial weight. A failure to satisfy specified-document and investment requirements cannot be treated as merely formal without reliable evidence that the substantive requirements are met. Private life formed while immigration status is precarious attracts little weight under section 117B(5) of the Nationality, Immigration and Asylum Act 2002. Economic contribution and business disruption will rarely amount to compelling circumstances justifying leave outside the Rules.

The appellants, a Nigerian husband and wife, appealed against the Upper Tribunal’s dismissal of their challenge to refusal of further leave to remain. The husband had applied as a Tier 1 entrepreneur under Part 6A of the Immigration Rules, but failed to provide the specified documents required to demonstrate access to the necessary investment funds.

The First-tier Tribunal allowed the appeal under Article 8 outside the Rules, principally because removal might cause the husband’s employment agency to close. The Upper Tribunal found material errors of law and remade the decision by dismissing the appeal. The central issues were whether Article 8 was engaged and whether removal was proportionate despite the business’s economic contribution.

The appeal was dismissed.

1. There would be no interference with the appellants’ family life as regards one another because the family would be removed together and there was no other relevant family life in the United Kingdom. Their ordinary friendships, social ties and community integration were nevertheless capable of engaging private life.
2. An entrepreneur’s ownership of and involvement in a business may, in some circumstances, form part of private life, particularly where the work is integral to physical and social identity. The observations in Niemietz v Germany (1993) 16 EHRR 97 and Pretty v United Kingdom (2002) 35 EHRR 1 supported that possibility. It was unnecessary to decide the point definitively because Article 8 was engaged on the conventional private-life basis.
3. The decisive issue was proportionality under the fifth Razgar question: R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368. Paragraph 276ADE of the Immigration Rules represented the Secretary of State’s assessment of the minimum residence required for private-life leave. Outside the Rules, exceptional compelling circumstances were required.
4. Part 6A established detailed criteria for business migration, including the specified investment funds. In the absence of compelling circumstances, leave should not be granted on the basis of business involvement where those criteria were not met. There was no reliable evidence that the failure was merely formal or that the substantive investment requirement was satisfied.
5. The business had been developed while the appellant’s immigration status was precarious. Under section 117B(5) of the Nationality, Immigration and Asylum Act 2002, little weight had to be given to private life established in those circumstances. The business’s economic contribution, the possible loss of employment and disruption to clients did not constitute sufficiently compelling circumstances, particularly since the work was not uniquely created by the business and no serious or lasting wider damage was shown.
6. The Chikwamba line of authority [2008] UKHL 40; [2008] 1 WLR 1420 did not apply. The Rules did not require an application under Part 6A to be made from abroad, and success of any fresh application had not been demonstrated. Removal was therefore proportionate, and the Upper Tribunal was entitled to overturn the First-tier Tribunal’s decision.

1. Court of Appeal (Civil Division) — On 1 March 2018, dismissed the appeal against the Upper Tribunal’s decision.
2. Upper Tribunal (Immigration and Asylum Chamber) — On 3 February 2015, found material errors of law in the First-tier Tribunal’s decision, remade the decision and dismissed the appeal.
3. First-tier Tribunal — On 10 December 2014, allowed the appeal under Article 8 outside the Immigration Rules, principally because removal might cause the appellant’s business to close.