Sardabai Mansukhlal Girdharlal Thakrar v The Secretary of State for the Home Department

A human rights assertion arising from removal does not, without more, provide a compelling reason under the second appeals criteria. Otherwise, those criteria would cease to restrict second appeals in immigration cases.

In an Article 8 proportionality assessment, a person’s positive contribution to the community may reduce the weight of immigration control only in an exceptional and plainly demonstrable case. The contribution must be very significant and directly relevant to immigration control. A useful touchstone is whether removal would cause an irreplaceable loss to the community or a significant part of it.

Financial success or a substantial contribution to the economy by an appellant or family member does not, without more, justify giving less weight to immigration control.

The appellant, a Kenyan citizen, had remained in the United Kingdom unlawfully after the expiry of her visitor leave. The Secretary of State refused her human rights claim. The First-tier Tribunal dismissed her appeal, finding that she did not meet the adult dependent relative requirements, would not face very significant obstacles to integration in Kenya, and that removal was proportionate under Article 8.

Permission to appeal was refused by both the First-tier Tribunal and Upper Tribunal. Following a successful Cart judicial review of the Upper Tribunal’s refusal, the matter came before the Upper Tribunal to determine whether the First-tier Tribunal decision involved an error of law.

The principal issues concerned the grandchildren’s best interests, alleged obstacles to reintegration, the appellant’s health and private life, and whether the economic contribution made by her son’s business could reduce the public interest in immigration control.

1. The appeal was dismissed. The First-tier Tribunal had made findings open to it on the evidence and had committed no material error of law.

2. The fact that a proposed appeal concerns removal and an alleged breach of human rights does not itself satisfy the compelling-reason limb of the second appeals criteria. Removal is inherent in human rights and protection appeals. Treating that consequence alone as compelling would deprive the criteria of their restrictive function.

3. The First-tier Tribunal was entitled to find that the appellant would face no very significant obstacles to reintegration in Kenya. Her age, health, long absence and family ties in the United Kingdom did not displace findings that she had lived much of her life in Kenya and could be supported there financially.

4. The judge properly assessed the grandchildren’s welfare under section 55 of the Borders, Citizenship and Immigration Act 2009. The relationship was close and beneficial, but the children lived with their parents and there was no evidence that removal would materially harm their welfare, religious instruction or cultural identity. Ordinarily, a grandparent-grandchild relationship carries material Article 8 weight only if the grandparent has assumed a parental role.

5. The appellant’s private life had been developed while she was unlawfully present. Section 117B(4)(a) of the Nationality, Immigration and Asylum Act 2002 therefore required little weight to be given to it. Financial independence was no more than a neutral factor; section 117B(5) could not assist an overstayer.

6. UE (Nigeria) and Others v Secretary of State for the Home Department [2010] EWCA Civ 975 remained binding authority that an exceptionally valuable contribution to the community may reduce the weight of immigration control. But that is confined to a very significant and effectively indisputable contribution, such as an irreplaceable loss to the community. The appellant’s son would continue to operate his business if she were removed. His business success could not diminish the public interest in her removal.

• Upper Tribunal (Immigration and Asylum Chamber): The appeal was dismissed. The First-tier Tribunal had made no material error of law.
• High Court: A Cart judicial review quashed the Upper Tribunal’s earlier refusal of permission and led to the present determination.
• Upper Tribunal (Immigration and Asylum Chamber): Permission to appeal against the First-tier Tribunal decision was refused on 22 November 2017.
• First-tier Tribunal: The appellant’s appeal against refusal of her human rights claim was dismissed in a decision promulgated on 6 March 2017.