Rhuppiah v Secretary of State for the Home Department

The Supreme Court determined the meaning of the word "precarious" in section 117B(5) of the Nationality, Immigration and Asylum Act 2002. The court held that, for the purposes of section 117B(5), any non-citizen who has leave to reside in the United Kingdom for a limited period (that is, any leave short of indefinite leave to remain) has a "precarious" immigration status. The court explained that Parliament deliberately distinguished a precarious status from unlawful presence (addressed by s117B(4)) and that the statutory framework allows a limited degree of flexibility through section 117A(2)(a) so that exceptional cases may still outweigh the public interest considerations set out in section 117B. The court also held that "financially independent" in section 117B(3) means independence from state support (not from credible third-party support), and concluded that the First-tier Tribunal erred in its application of section 117B(3) to Ms Rhuppiah's case.

This appeal concerned the lawfulness of the Home Secretary's determination to remove Ms Rhuppiah, a Tanzanian national, by reference to article 8 of the European Convention on Human Rights and section 6(1) of the Human Rights Act 1998. The First-tier Tribunal dismissed her claim, concluding that her private life had been established when her immigration status was "precarious" within the meaning of section 117B(5) of the Nationality, Immigration and Asylum Act 2002; that decision was upheld by the Upper Tribunal and the Court of Appeal ([2016] EWCA Civ 803).

The appeal to the Supreme Court raised three principal issues: (i) the meaning of "precarious" in section 117B(5); (ii) the effect of section 117A(2)(a) which requires decision-makers to have regard to the considerations listed in section 117B while preserving compatibility with article 8; and (iii) the meaning of "financially independent" in section 117B(3).

The court reviewed the relevant Strasbourg jurisprudence (including Mitchell, Useinov, Jeunesse and related authorities) and domestic authorities, and concluded that Parliament intended a clear, administrable test: a person present in the UK who has leave to reside other than indefinitely has a precarious immigration status for s117B(5). The court emphasised that section 117A(2)(a) supplies a limited flexibility so that particularly strong private-life features may, in exceptional cases, outweigh the statutory "little weight" direction. On section 117B(3) the court accepted the parties' agreed interpretation that "financially independent" denotes not being dependent on the state; reliance on credible third-party support does not of itself undermine financial independence, although the evidence of such support must be credible and reliable.

Procedurally, while the court allowed the appeal and set aside the First-tier Tribunal's order, the appeal had become largely academic because the Home Secretary had granted Ms Rhuppiah leave to remain under the Immigration Rules on 9 February 2018. For that reason the court did not remit the matter for fresh determination.

Appeal allowed. The Supreme Court held that, for the purposes of section 117B(5) of the Nationality, Immigration and Asylum Act 2002, an immigrant has a "precarious" immigration status if he or she has leave to remain other than indefinitely. The court explained that Parliament distinguished precarious status from unlawful presence (addressed by s117B(4)), that s117A(2)(a) preserves limited flexibility for exceptional cases, and that "financially independent" in s117B(3) means independence from state support. The First‑tier Tribunal erred in its treatment of s117B(3); the tribunal's order was set aside but the court did not remit given the subsequent grant of leave to the appellant.

First-tier Tribunal dismissed the Article 8 challenge (decision dated 22 August 2014). Upper Tribunal refused leave to appeal and dismissed the appeal. Court of Appeal (Sales LJ, Moore-Bick LJ and Sir Stephen Richards) upheld the First-tier Tribunal's decision: [2016] EWCA Civ 803. Appeal to the Supreme Court allowed: [2018] UKSC 58.