GM (Sri Lanka) v The Secretary of State for the Home Department (Rev 1)

In an Article 8 family-life case outside the Immigration Rules, the court must strike a fair balance on the individual facts. Practical feasibility of relocation is relevant but not decisive. The court must also assess reasonableness, proportionality and the rights which family members would relinquish.

The statutory direction to give private life little weight does not apply to family life formed during lawful but precarious residence. Family precariousness requires consideration of the relevant family members’ awareness that their life together in the United Kingdom might not persist. Children’s best interests attract significant weight, and the assessment must reflect where their parents are realistically expected to live.

The appellant, a Sri Lankan national, entered the United Kingdom as a student and later married a Sri Lankan national who held discretionary leave. They had two children. The Secretary of State refused asylum and leave to remain on human-rights grounds. The First-tier Tribunal dismissed the appeal, and the Upper Tribunal upheld that decision.

The appellant challenged the treatment of her Article 8 family life. After the tribunal decisions, her husband and children received indefinite leave to remain. The central issues were whether the First-tier Tribunal had applied the correct proportionality assessment, including the provisions of section 117B of the Nationality, Immigration and Asylum Act 2002, and how the changed circumstances should affect relief.

1. Appeal allowed. The First-tier Tribunal failed to consider relevant facts and misapplied the governing Article 8 tests. Its decision, the Upper Tribunal’s affirming decision and the Secretary of State’s original decision were set aside.

2. An assessment outside the Immigration Rules asks whether a fair balance has been struck between the public interest in immigration control and the individual’s private and family interests. References to exceptional circumstances impose no additional requirement for a unique or highly unusual feature. The assessment must be individualised, practical and realistic. Relevant factors are not confined to a closed list, although assertions require proper evidential support.

3. The nature and practical substance of each family member’s immigration status are relevant. A pathway to settlement may place a person in a stronger position than another holder of limited leave. The First-tier Tribunal failed to weigh the husband’s legacy status and pathway to settlement, or the rights which he and the children might lose by leaving the United Kingdom.

4. Sections 117B(4) and 117B(5) of the Nationality, Immigration and Asylum Act 2002 did not justify discounting the appellant’s family life. Section 117B(4) concerns private life, or a relationship with a qualifying partner, established while the applicant is in the United Kingdom unlawfully. Section 117B(5) concerns only private life established while immigration status is precarious. The appellant’s family life arose during lawful, though temporary, residence.

5. In a family-life case, precariousness requires consideration of whether the relevant family members were aware from the outset that their family life in the host state might not persist. The First-tier Tribunal did not examine the husband’s position or whether his pathway to settlement affected that awareness.

6. Children’s best interests must receive significant weight. The tribunal must consider where their parents are realistically expected to live, without blaming children for parental conduct. The First-tier Tribunal could not assume that the husband would relocate after leaving unchallenged his evidence that he would remain. It therefore failed to assess the real risk of family rupture.

7. Outside the Immigration Rules, the ability to overcome obstacles to relocation is only a relevant factor. Practicality and feasibility do not conclude the inquiry. Reasonableness, proportionality and the fair balance must also be assessed. The First-tier Tribunal’s mechanistic inquiry into whether the husband could relocate was legally insufficient.

8. Given the later grants of indefinite leave to the husband and children, the matter was not remitted. Under section 87 of the Nationality, Immigration and Asylum Act 2002, the Secretary of State was directed to reconsider the appellant’s claim that removal would breach Article 8.

1. Court of Appeal (Civil Division): The appeal was allowed. The First-tier Tribunal and Upper Tribunal decisions, together with the Secretary of State’s original decision, were set aside. The Secretary of State was directed to reconsider the Article 8 claim.
2. Upper Tribunal (Immigration and Asylum Chamber): On 7 December 2015, the Upper Tribunal dismissed the appeal and upheld the First-tier Tribunal’s treatment of section 117B of the Nationality, Immigration and Asylum Act 2002.
3. First-tier Tribunal: On 25 August 2015, the tribunal dismissed the asylum and Article 8 appeals.
4. Secretary of State: On 20 February 2015, the appellant’s applications for asylum and leave to remain on human-rights grounds were refused.