Rhuppiah v Secretary of State for the Home Department

For section 117B(5) of the Nationality, Immigration and Asylum Act 2002, every non-UK citizen whose leave to remain is limited rather than indefinite has a precarious immigration status. The concept is governed by a bright line, not an assessment of degrees of precariousness. Unlawful presence is addressed separately by section 117B(4).

The direction to give little weight to private life established during precarious status is not an absolute rule. Section 117A(2)(a) permits particularly strong features to outweigh that guidance in an exceptional case. A person is financially independent under section 117B(3) when not dependent on the state; credible and reliable third-party support may suffice. Speaking English and being financially independent remove potential public-interest objections but do not create positive public-interest factors favouring permission to remain.

Rhuppiah v Secretary of State for the Home Department concerned a Tanzanian national who had lived in the United Kingdom since 1997, mainly with successive grants of limited student leave. Her private life included providing extensive unpaid care to a seriously ill friend. The First-tier Tribunal dismissed her article 8 appeal against removal, treating her immigration status as precarious and her dependence on her father and friend as a lack of financial independence.

The Upper Tribunal dismissed her further appeal. The Court of Appeal, in [2016] EWCA Civ 803, [2016] 1 WLR 4203, upheld the First-tier Tribunal. Before the Supreme Court hearing, the Home Secretary granted her 30 months’ leave under the private-life provisions of the Immigration Rules, making the dispute academic. The appeal nevertheless proceeded because the meaning of “precarious” in section 117B(5) of the Nationality, Immigration and Asylum Act 2002 was of general importance and the parties agreed that the lower courts had misconstrued “financially independent” in section 117B(3).

1. Disposition. Lord Wilson delivered the judgment, with which Lord Carnwath, Lord Hughes, Lady Black and Lord Lloyd-Jones agreed. The appeal was allowed unanimously. The First-tier Tribunal’s order was set aside, but the original appeal was not remitted because the Home Secretary’s subsequent grant of leave had removed any need for a fresh determination.

2. Precarious immigration status. Section 117B(5) of the Nationality, Immigration and Asylum Act 2002 adopts a bright-line meaning. Every non-UK citizen who has leave to remain other than indefinitely has a precarious immigration status. Its application does not depend on an evaluative examination of the migrant’s prospects of settlement, reasonable hopes or wider circumstances. This construction accords with AM (S117B) Malawi [2015] UKUT 260 (IAC), the distinction drawn in the Strasbourg authorities between temporary permission and settlement, and R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11.

3. Section 117B(4) and section 117B(5) draw a clear distinction between unlawful presence and precarious lawful status. A person present unlawfully falls within subsection (4), rather than subsection (5). The court left open whether indefinite leave obtained by deception, or followed by criminal conduct capable of justifying withdrawal, might nevertheless amount to precarious status.

4. Flexibility under section 117A. Section 117A(2)(a) requires a court or tribunal to have regard to the section 117B considerations. It does not place the decision-maker in a statutory strait-jacket. Although section 117B(5) ordinarily requires little weight to be given to private life established during precarious status, particularly strong features of that private life may override the general guidance in an exceptional case. This limited flexibility ensures that Part 5A can produce an outcome compatible with article 8 of the European Convention on Human Rights.

5. Financial independence and English language. “Financially independent” in section 117B(3) means independent of financial support from the state. Dependence on another private person does not count against an article 8 claimant where the evidence of support is credible and the support is reliable. The First-tier Tribunal and Court of Appeal therefore erred by treating the appellant’s private support as an adverse public-interest factor. The reasoning in R (MM (Lebanon)) v Secretary of State for the Home Department [2017] UKSC 10 provided relevant context.

   Sections 117B(2) and (3) do not make proficiency in English or financial independence positive public-interest factors favouring leave to remain. They establish adverse public-interest considerations when a claimant lacks either quality. The financial-independence error might have affected the exercise of the limited flexibility under section 117A(2)(a), so it was material and justified allowing the appeal.

1. United Kingdom Supreme Court: In Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58, the court unanimously allowed the appeal and set aside the First-tier Tribunal’s order. It ordered no remittal because the Home Secretary’s subsequent grant of leave had made the original appeal academic.

2. Court of Appeal: In [2016] EWCA Civ 803, [2016] 1 WLR 4203, the court upheld the finding that the appellant’s immigration status had been precarious and rejected her construction of “financially independent”.

3. Upper Tribunal: The appellant’s further appeal from the First-tier Tribunal failed. No citation is stated in the judgment.

4. First-tier Tribunal: On 22 August 2014, Judge Blundell dismissed the article 8 appeal against the Home Secretary’s removal decision.