Muhammad Arshad v Secretary of State for The Home Department

In an article 8 proportionality assessment, family life is not a single category. The nature and quality of the relationship must be assessed before its weight is determined. Family life formed or developed while a person was unlawfully present is a mandatory relevant consideration, whether or not the statutory little-weight provisions apply. The significance of precariousness depends on the person’s position on the relevant spectrum. Children’s best interests are a primary consideration, but are not automatically paramount or decisive. Enforcement delay is relevant where it has affected the individual or family, although its weight is for the tribunal. English-language ability and financial independence may be neutral factors.

Mr Arshad, a Pakistani citizen, appealed against the Upper Tribunal’s decision in case UI-2022-006623. The Upper Tribunal had set aside and remade a First-tier Tribunal decision which had allowed his human rights appeal against refusal of further leave to remain.

The First-tier Tribunal found that Mr Arshad enjoyed family life with his sister and her children, with whom he had lived for several years, and that his removal would have unjustifiably harsh consequences. The central issues before the Court of Appeal were whether the First-tier Tribunal had failed to take account of the unlawful formation or development of those relationships, and whether the Upper Tribunal’s remade proportionality assessment was legally adequate.

Appeal dismissed. Lady Justice Laing gave the leading judgment, with Lord Justice Peter Jackson and Lord Justice Underhill agreeing.

1. The classification of a relationship as family life under article 8 is only a starting point. Relationships differ in nature and quality. Core parental relationships ordinarily carry greater weight than relationships between adult siblings or between an uncle and children whose parents live with them.
2. Precariousness has no fixed meaning. The court must identify where the individual falls on the spectrum. Mr Arshad’s long period of unlawful residence placed his case at the extreme end. The fact that relationships were formed or developed during unlawful residence was relevant to the weight given to them. It was a mandatory relevant consideration, both inside and outside Part 5A of the Nationality, Immigration and Asylum Act 2002. Jeunesse v Netherlands (2015) 60 EHRR 17 and R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11 supported that approach.
3. Section 117B was not exhaustive. Sections 117B(4) and (5) did not apply to the family relationships in this case and could not be treated as a proxy for the separate relevance of unlawful residence. The First-tier Tribunal had failed to confront that factor. Its general references to immigration control, and its description of the immigration history as not ideal, did not cure the omission. That was a material error of law.
4. The Upper Tribunal was entitled to find that the children’s best interests favoured Mr Arshad remaining, while concluding that his removal would not be significant or dispositive because their primary relationship was with their parents, who could continue to care for them. Best interests were a primary, not a paramount, consideration.
5. Enforcement delay was relevant. The Upper Tribunal considered the Secretary of State’s delay and was entitled to conclude that it did not significantly reduce the public interest in removal, given the absence of demonstrated prejudice. It was also entitled to treat English-language ability, integration and likely financial self-sufficiency as neutral factors.

• Court of Appeal (Civil Division) dismissed Mr Arshad’s appeal against the Upper Tribunal’s remade decision.
• Upper Tribunal (Immigration and Asylum Chamber) set aside and remade the First-tier Tribunal’s decision and dismissed the article 8 appeal.
• First-tier Tribunal (Immigration and Asylum Chamber) allowed Mr Arshad’s appeal against the refusal of further leave to remain on human rights grounds.