Court of Appeal says guidance on the “unduly harsh” test in deportation cases now confined to KO (Nigeria) and HA (Iraq)

AA (Nigeria) v Secretary of State [2020] EWCA Civ 1296 (09 October 2020)  builds up on HA (Iraq) v Secretary of State for the Home Department (Rev 1) [2020] EWCA Civ 1176, which was only last month notified in the Court of Appeal.

The judgment in HA(Iraq) touches upon several caselaw relating to the deportation of foreign national criminals, drawing the various threads together on the arising principles, with a particular focus on the  meaning of “unduly harsh”  contained in Paragraph 399 of the Immigration Rules and Section 117C(5) of the  Nationality, Immigration and Asylum Act 2002.  A foreign national criminal subject to deportation  is able to successfully resist deportation where  he or she can show that they  have a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK; the child is a British Citizen or the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case it would be unduly harsh for the child to live in the country to which the person is to be deported and it would be unduly harsh for the child to remain in the UK without the person who is to be deported.

HA(Iraq), which sought to provide additional guidance on the application of the unduly harsh test following  the Supreme Court  judgement in KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53, is considered in detail in a previous recent blog post: https://ukimmigrationjusticewatch.com/2020/09/08/court-of-appeal-on-foreign-criminals-with-british-children-threshold-of-unduly-harsh-test-not-as-high-as-very-compelling-circumstances-test/

SUMMARY BACKGROUND

AA(Nigeria) concerned the appeal of a Nigerian national, who had on 29 November 2013 been convicted of supplying Class A drugs and sentenced to 4 ½ years imprisonment.

A First Tier Tribunal(FTT) Judge  allowed his appeal on the grounds that his deportation would disproportionately interfere with the rights of his British  partner and British two children under article 8 of the European Convention on Human Rights (“ECHR”). The Judge’s conclusion was that the unduly harsh consequences of deportation for the appellant’s partner and family and other additional factors provided very compelling reasons why the significant public interest in his deportation was outweighed. On the Secretary of State’s appeal, the Upper Tribunal determined that the FTT decision involved an error of law. Following a further hearing, the Upper Tribunal dismissed the appellant’s appeal against his deportation order. The appellant appealed to the Court of Appeal against the Upper Tribunal decisions in finding an error of law in the FTT Judge’s decision and the remaking of the decision.

KEY ISSUES ARISING OUT OF AA(NIGERIA)

Not necessary to extensively cite authorities in deportation appeals outside four identified authorities

In relation to the meaning or application of the two statutory tests, ie the “unduly harsh” test in section 117C(5) of the 2002 Act, and the “very compelling circumstances” test in section 117C(6), the Court stated as follows:

  • There is no need to refer extensively to authority for the meaning or application of the two statutory tests.
  • It should usually be unnecessary to refer to anything outside the four authorities identified, namely KO (Nigeria) v Secretary of State for the Home Department [2018] 1 WLR 5273R (on the application of Byndloss) v Secretary of State for the Home Department [2017] 1 WLR 2380NA (Pakistan) v Secretary of State for the Home Department [2017] 1WLR 207HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 117. 
  • It will usually be unhelpful to refer first instance judges to other examples of their application to the particular facts of other cases and seek to draw factual comparisons by way of similarities or differences. Decisions in this area will involve an examination of the many circumstances making up private or family life, which are infinitely variable, and will require a close focus on the particular individual private and family lives in question, judged cumulatively on their own terms.
  • Nor will it be necessary for first instance judges to cite extensively from these or other authorities, provided that they identify that they are seeking to apply the relevant principles.
  •  It is an impediment to the efficient working of the tribunal system in this area for judges to have numerous cases cited to them or to feel the need to set out extensive quotation from them, rather than focussing primarily on their application to the factual circumstances of the particular case before them.
  • Judges who are experienced in these specialised courts should be assumed by any appellate court or tribunal to be well familiar with the principles, and to be applying them, without the need for extensive citation, unless it is clear from what they say that they have not done so.
  • Experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so.

KO (Nigeria) and HA (Iraq) provide authoritative guidance as to the meaning of “unduly harsh”

In relation to what is meant by “unduly harsh” in section 117C(5), the authoritative guidance is now that given by Lord Carnwath JSC in KO (Nigeria) and by the Court of Appeal in HA (Iraq):

  • The Court in AA(Nigeria) made reference to paragraphs 23 and 27 of KO(Nigeria)  as per Lord Carnwath’s judgement, ie “…….One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of relative levels of severity of the parent’s offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department [2017] 1 WLR 240 , paras 55 and 64) can it be equated with a requirement to show “very compelling reasons”. That would be in effect to replicate the additional test applied by section 117C(6) with respect to sentences of four years or more.” And, “ Authoritative guidance as to the meaning of “unduly harsh” in this context was given by the Upper Tribunal (McCloskey J President and Upper Tribunal Judge Perkins) in MK (Sierra Leone) v Secretary of State for the Home Department [2015] INLR 563 , para 46, a decision given on 15 April 2015. They referred to the “evaluative assessment” required of the tribunal: “By way of self-direction, we are mindful that ‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.”
  • The guidance on the unduly harsh test can now be confined to KO (Nigeria) and HA (Iraq). The latter is a necessary adjunct to the former both because it explains aspects of Lord Carnwath’s observations and because it provides additional guidance on the application of the unduly harsh test.

The meaning of “very compelling circumstances” as per Byndloss  and NA(Pakistan)

The Court in AA(Nigeria) went further and concluded:

  • In relation to what is meant by “very compelling circumstances”, reference was made to Byndloss as per Lord Wilson JSC paragraph at 33:
  • “33. The deportation of a foreign criminal is conducive to the public good. So said Parliament in enacting section 32(4) of the 2007 Act: see para 11 above. Parliament’s unusual statement of fact was expressed to be for the purpose of section 3(5)(a) of the 1971 Act so its consequence was that every foreign criminal became automatically liable to deportation. Parliament’s statement exemplifies the “strong public interest in the deportation of foreign nationals who have committed serious offences”: Ali v Secretary of State for the Home Department [2016] 1 WLR 4799, para 14, per Lord Reed JSC. In the Ali case the court was required to identify the criterion by reference to which the tribunal should determine an appeal of a foreign criminal on human rights grounds against a deportation order. The decision was that the public interest in his deportation was of such weight that only very compelling reasons would outweigh it: see paras 37 and 38, per Lord Reed JSC.………..
  • 55. The third [feature of the background] is that, particularly in the light of this court’s decision in the Ali case, every foreign criminal who appeals against a deportation order by reference to his human rights must negotiate a formidable hurdle before his appeal will succeed: see para 33 above. He needs to be in a position to assemble and present powerful evidence. I must not be taken to be prescriptive in suggesting that the very compelling reasons which the tribunal must find before it allows an appeal are likely to relate in particular to some or all of the following matters: (a) the depth of the claimant’s integration in United Kingdom society in terms of family, employment and otherwise; (b) the quality of his relationship with any child, partner or other family member in the United Kingdom; (c) the extent to which any relationship with family members might reasonably be sustained even after deportation, whether by their joining him abroad or otherwise; (d) the impact of his deportation on the need to safeguard and promote the welfare of any child in the United Kingdom; (e) the likely strength of the obstacles to his integration in the society of the country of his nationality; and, surely in every case; (f) any significant risk of his reoffending in the United Kingdom, judged, no doubt with difficulty, in the light of his criminal record set against the credibility of his probable assertions of remorse and reform.”
  • The interrelationship between these principles and the Exceptions in Section 117(C)3-( C) 5, both in relation to medium term offenders( with sentences of one to four years) and serious offenders( with sentences of 4years or more) was authoritatively set out by Jackson LJ in NA(Pakistan) at paragraphs 28 to 39.

Criticism of the Upper Tribunal’s approach

Upon re-making the decision in AA(Nigeria), the Upper Tribunal was noted to have concluded that: “Taking all of the above factors together, and taking into account my findings on what is in the best interests of the children, I am not satisfied that there is sufficient evidence that the effect of the Appellant’s deportation will be unduly harsh. The children will remain in the UK with their respective mothers. Their separation from the Appellant will undoubtedly be harsh. It may even be very harsh. However, the factors relied upon are no more than those which would be involved for any child faced with deportation of a parent. I do not accept that the evidence shows that the very high threshold which applies is met (see KO (Nigeria)).”

The question was whether the Upper Tribunal was right to conclude that the FTT Judge’s decision was perverse.

The Court of Appeal in AA(Nigeria) reached the following conclusions:

  • The Upper Tribunal’s conclusions were unsustainable. When purporting to summarise the FTT Judge’s factual findings which were relevant to her assessment of harshness, the Upper Tribunal Error of Law decision did not do so accurately or fairly. It did not include all of the FTT Judge’s factors, omitting, for example, any reference to the adverse impact of the appellant’s absence on the relationship between the two children, to which the FTT Judge attached significant weight. It mischaracterised others so as to diminish their significance, with the result that it was not a summary which took them at their highest, despite purporting to do so. The factors which the FTT Judge identified were capable of supporting the conclusion that the effect on the appellant’s partner and the children of remaining in the UK without the appellant met the elevated unduly harsh test. That was an evaluative judgement for the FTT Judge on the basis of the full evidence before her, including cross-examined oral evidence and the report from  the independent social worker. Her findings of fact were such that a conclusion of undue harshness was open to her.
  • Different tribunals might have reached a different conclusion, but it is inherent in the evaluative exercise involved in these fact sensitive decisions that there is a range of reasonable conclusions which a judge might reach, and the error of law under consideration was only made out if the FTT Judge’s conclusion was outside that range. In the Court of Appeal’s view it was within the range in this case.
  • It appeared be a case in which the Upper Tribunal interfered merely on the grounds that its members would themselves have reached a different conclusion. This was considered impermissible by the Court of Appeal.  
  • The Court in AA(Nigeria) indicated that it appreciated that under the tribunal system, established by the Tribunals Courts and Enforcement Act 2007 Act, the Upper Tribunal is itself a specialist tribunal, with the function of ensuring that First-tier Tribunals adopt a consistent approach to the determination of questions of principle which arise under the particular statutory scheme in question by giving guidance on those questions of principle.  However it is no part of such function to seek to restrict the range of reasonable views which may be reached by FTT Judges in the value judgments applied to the many different private and family life circumstances which make almost all cases in this area different from each other. It is emphatically not part of their function to seek conformity by substituting their own views as to what the outcome should be for those of first instance judges hearing the evidence.
  • The upper Tribunal’s reference to the fact that the consequences of deportation  “may be very harsh” was unhelpful. Tribunal judges should not seek to express their decisions by categorisations of degrees of harshness, which is to complicate what is a single and straightforward statutory test. They should identify the factors which are relied on as making the consequences of deportation unduly harsh and evaluate whether cumulatively they do so, bearing in mind that it is an elevated threshold, and that, as HA (Iraq) explains, it is undesirable to approach the issue by trying to identify what is “the norm” and what in the individual case goes beyond that: almost all cases are different, involving a multitude of individual factors, and it is impossible to measure objectively a norm or baseline as the comparator against which the individual case is to be judged.

Rehabilitation can carry some weight in the balance when considering “very compelling circumstances”

The matter of whether rehabilitation can be a factor of any significant weight in considering very compelling circumstances is an issue  that has now been fully addressed in HA (Iraq) at paragraphs 132 to 142 where the previous authorities were analysed. As the court in HA (Iraq) stated at paragraphs 140 and 141, tribunals will properly remain cautious about their ability to make findings on the risk of reoffending, but where a tribunal is able to make an assessment that the foreign criminal is unlikely to reoffend, that is a factor which can carry some weight in the balance when considering very compelling circumstances, although not one which will carry great weight on its own.

  • Rehabilitation is not limited to the mere fact that there has been no further offending. What is also relevant is the risk of further offending. The fact that the criminal has not reoffended may inform that assessment, but may not of itself provide much if any basis for concluding that the risk of reoffending is significantly reduced, especially if it is for a relatively short period. However rehabilitation, in the sense of a reduced risk of reoffending, is to be assessed by reference to a multitude of factors other than merely the absence of further offending. It is the common task of the probation service daily to make such an assessment in the preparation of pre-sentence reports for sentencing judges, and they perform that assessment by reference to factors some of which are offence specific, but many of which are specific to the offender. It is well recognised, for example, that a change of personal circumstances since the offending is capable of reducing the risk of further offending and may in some cases be of sufficient weight to render it unlikely. It does not need the specialist experience of probation officers to reach such a conclusion, which may be apparent to an immigration judge depending on the particular personal circumstances in which the offender came to offend, how influential they were on the offending and how the change of circumstances affects the risk of further offending.
  • The FTT Judge in this case performed that evaluative exercise in concluding that the appellant was most unlikely to reoffend given the vulnerable circumstances in which he offended, his positive steps to reduce his risk of reoffending and the more stable family circumstances of his years since the offending. Of course they could not be said to eliminate any risk of reoffending. But taken with the appellant’s own evidence as to his current attitude to his offending, they can properly support the Judge’s conclusion that the risk of reoffending was reduced to the level of most unlikely.

CONCLUSION

The Court of Appeal in AA(Nigeria) allowed the Appellant’s appeal and restored the decision of the FTT Judge.

The outright restoration of AA’s appeal without a remittal to the Upper Tribunal indicates  just how wrong the Upper Tribunal had it in finding an error of law in the FTT Judge’s decision and in remaking the decision and dismissing the Appellant’s appeal.

There was nothing wrong in the  FFT Judge’s decision allowing the appeal, yet the Upper Tribunal sought, contrary to what was actually required of it, simply to substitute their own decision merely because they did not like the FTT Judge’s decision.

The reasoning and considerations in AA(Nigeria) however have a double edged effect: they equally apply where an appeal is dismissed by an FTT Judge and an appellant seeks to apply for permission to appeal to the Upper Tribunal. An appellant may well ultimately be left with a negative FTT decision, unable to have it overturned on the basis that mere disagreement  with an FFT Judge’s decision is not sufficient to evidence an error of law.

Court of Appeal on foreign criminals with British children: threshold of “unduly harsh” test not as high as “very compelling circumstances” test

HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176 (04 September 2020) is the latest serving from the Court of Appeal on deportation of non-EEA foreign national criminals.

The judgement is quite lengthy, running to 164paragraphs.

Tedious though it may seem but as always, the exposition and summaries in Court judgements in the complex area of deportation serve as a good reminder of the relevant statutory provisions as well as arising principles.

The Court in HA(Iraq  was concerned with  Family life Exception 2 in Section 117C(5) of Part 5A of the Nationality, Immigration and Asylum Act 2002 and in particular with the meaning of the phrase “unduly harsh”.  There was therefore an issue before the Court about the height of the threshold which the phrase sets.

The Appellants in  HA(Iraq contended that the effect of their deportation on their  British children( and partners) was “unduly harsh” – deportation is not justified if either of the two Exceptions identified in sub-sections (4) and (5) of Section 117C apply. 

Although AH(Iraq)’s focus is  stated to be the unduly harsh test after  KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, [2018] 1 WLR 5273, in order to appreciate the significance of the issues raised in AH(Iraq), the entirety of the judgement must be considered, including the discussions on caselaw, the relevant principles on deportation, the  Court’s consideration and conclusions on each of the Appellants.

The summary below sets out the issues that fell within the Court’s considerations:

  • NA(Pakistan) remains the “fullest overall guide” in relation to Part 5A and Part 13 of the Rules  
  • NA(Pakistan) does not say that it will be rare for cases to fall within section 117C (5)
  • Decision makers should be cautious about transposing statements of principle from one statutory context to another
  • Continued authoritative status of caselaw decided under old regime pre Part 5A and associated changes to Rules
  • AH(Iraq)’s analysis of the approach to the unduly harsh test in KO(Nigeria)
  • The word “unduly” does not import a requirement to consider “the severity of the parent’s offence”
  • The underlying concept is of an enhanced degree of harshness sufficient to outweigh the public interest in the deportation of foreign criminals in the medium offender category
  • KO(Nigeria) endorsed the Upper Tribunal’s self-direction in MK (Sierra Leone) as to the meaning of unduly harsh
  • It is unfortunate that NA(Pakistan) was not considered by the Supreme Court in KO(Nigeria)
  • AH(Iraq)’s guidance on the meaning of the unduly harsh test
  • HA’s appeal allowed in the Court of Appeal and basis of remittal to the Upper Tribunal
  • Section 117C(5) and the case of a “very much hands-on father”
  • Section 117C(6) – consideration of the “ very compelling circumstances” where the offence is at or near the bottom of the scale of seriousness
  • RA’s appeal allowed in the Court of Appeal and basis of remittal to the Upper Tribunal
  • Section 117C(5) and considerations of  the intrinsic importance of a child’s British citizenship and best interests of the child
  • Section 117C(6) – consideration of the “ very compelling circumstances” and the effect of rehabilitation on re-offending
  • The use of “factual precedents – Tribunal has to make its own evaluation of the particular facts before it
  • A decision that does not give primary consideration to the children’s best interests will be liable to be set aside

(1)THE BACKGROUND

Introductory paragraphs 1 to 3 in AH(Iraq) are enough for current purposes to obtain sufficient background to the appeals and the issues in point:

“1. These two appeals have been listed together because they raise similar issues. The Appellants are non-British nationals – both, though this is coincidental, from Iraq – who came to this country many years ago and have lived here ever since. Both are in settled relationships with women of British nationality and have young children who are likewise British citizens. Both committed criminal offences for which they were sentenced to terms of imprisonment of sixteen and twelve months respectively. Those sentences attracted the automatic deportation provisions of section 32 of the UK Borders Act 2007. In both cases the Secretary of State made a deportation order but the Appellant appealed to the First-tier Tribunal (“the FTT”). The appeals are subject to the terms of Part 5A of the Nationality, Immigration and Asylum Act 2002 (in particular section 117C), and Part 13 of the Immigration Rules, of which I give more details below.

2.In both cases the appeals were successful, but the Secretary of State in her turn appealed to the Upper Tribunal (“the UT”). Both appeals were allowed and the decisions directed to be re-made by the UT at a further hearing. ……….The two appeals, together with two others (one of which was MS (Philippines) [2019] UKUT 122 (IAC)), were listed on successive days in order for the UT, in constitutions chaired by the President, to give authoritative guidance on various issues about section 117C arising out of the then recent decision of the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, [2018] 1 WLR 5273. The decision in RA was the principal vehicle for that guidance, though some points of general application are dealt with in the other decisions.

3.In both cases the UT allowed the Secretary of State’s appeal. In September last year I gave permission to appeal to this Court. I considered that there were arguable grounds of appeal in both cases, but the main reason why I thought that the second appeals test was satisfied was that I believed that this Court should have the opportunity to consider the guidance given by the UT on the issues of general application”.

(2)STATUTORY PROVISIONS

  • UK Borders Act 2007 – Sections 32 to 33 on Automatic Deportation
  • – Article 8 of the ECHR :Right to respect for private and family life
  • – Section 55: regard to the need to safeguard and promote the welfare of children who are in the United Kingdom
  • the United Nations Convention on the Rights of the Child (“the UNCRC”) – Article 3.1: the best interests of the child shall be a primary consideration
  • Part 13 of the Immigration Rules- paragraphs A398 to 400 are headed “Deportation and Article 8
  • Part 5A of the Nationality, Immigration and Asylum Act 2002- “Article 8 of the ECHR: public interest considerations”. Sections – 117A-117D.  In particular Section 117C in cases concerning the deportation of foreign criminals

(3)RELEVANT CASELAW REFERRED TO BY THE COURT OF APPEAL IN AH(IRAQ)

(4)RELEVANT STATUTORY PROVISIONS ON THE “ UNDULY HARSH TEST” AND “THE VERY COMPELLING CIRCUMSTANCES TEST”

Section 117 provides for the exceptions to deportation, i.e Exception 1 being concerned with private life (based on long residence) and Exception 2 with family life.

Section 117C states:

“………..

(3) In the case of a foreign criminal (‘C’) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where –

(a) C has been lawfully resident in the United Kingdom for most of C’s life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

 …….”

A “qualifying child” is “a person who is under the age of 18 and who (a) is a British citizen, or (b) has lived in the United Kingdom for a continuous period of seven years or more”.

A “qualifying partner” is “a partner who (a) is a British citizen, or (b) is settled in the United Kingdom (within the meaning of the Immigration Act 1971 …)”.

(5)COMPARISON OF THE FAMILY LIFE EXCEPTION TO DEPORTATION IN PARAGRPAH 399 AND THAT IN SECTION 117C(5)

The effect of section 117C is substantially reproduced in paragraphs A398-399A, though in more detail.

Paragraph 399 of the Immigration Rules, contains the equivalent to Exception 2 referred to above, and is described as applying where either the potential deportee:

“(a) … has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision;

And in either case

(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and

(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; …”

Or he

“(b) … has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and

(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and

(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and

(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.”

(6)NA(PAKISTAN) REMAINS THE “FULLEST OVERALL GUIDE” IN RELATION TO PART 5A AND PART 13 OF THE RULES

As was made clear in HA(Iraq) at paragraph 26 in relation to Part 5A of the 2002 Act and Part 13 of the Rules,  by reference to NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662[2017] 1 WLR 207:

“………..There have by now been several further decisions of this Court and the Supreme Court applying these provisions and considering some particular points, but NA (Pakistan) remains the fullest overall guide”.

As per AH(Iraq) at paragraph 27 in relation to the starting point as to the purpose of the statutory scheme:

“The starting-point is that the purpose of the statutory scheme is to require decision-makers to adopt a structured approach to the article 8 issues raised by the removal of a foreign national – that is, whether it will constitute a disproportionate interference with, and thus a breach of, their article 8 rights –and one which ensures that due weight is given to the public interest. It is no part of its purpose to prevent the proper application of article 8. This is clearly stated in para. 26 of the judgment in NA (Pakistan) and again in para. 38, quoted below. Following from that, the statutory structure is a “complete code” in the sense that the entirety of the proportionality assessment required by article 8 can and must be conducted within it: that point is clearly made in paras. 35 and 36”.

AH(Iraq) continues at paragraph 29 in relation to the effect and application of Section 117( C ):

“Turning specifically to the case of foreign criminals, the effect of section 117C can be summarised as follows:

(A) In the cases covered by the two Exceptions in sub-sections (4)-(5), which apply only to medium offenders, the public interest question is answered in favour of the foreign criminal, without the need for a full proportionality assessment. Parliament has pre-determined that in the circumstances there specified the public interest in the deportation of medium offenders does not outweigh the article 8 interests of the foreign criminal or his family: they are, given, so to speak, a short cut. The consideration of whether those Exceptions apply is a self-contained exercise governed by their particular terms.

(B) In cases where the two Exceptions do not apply – that is, in the case of a serious offender or in the case of a medium offender who cannot satisfy their requirements – a full proportionality assessment is required, weighing the interference with the article 8 rights of the potential deportee and his family against the public interest in his deportation. In conducting that assessment the decision-maker is required by section 117C (6) (and paragraph 398 of the Rules) to proceed on the basis that “the public interest requires deportation unless there are very compelling circumstances over and above those described in Exceptions 1 and 2”.

AH(Iraq) further states at paragraph 31 as regards the “very compelling circumstances” test:

“The effect of the phrase “very compelling circumstances over and above those described in Exceptions 1 and 2”, and the nature of the exercise required by section 117C (6) as it applies both to medium offenders and to serious offenders, are carefully discussed at paras. 28-34 of NA (Pakistan). It is unnecessary that I quote that discussion in full here, but I should note four points applicable to the case of a medium offender”.

AH(Iraq) also sets out paragraphs 29 and 32 of NA(Pakistan) and concludes at paragraph 33:

“…..Those two passages make clear that, in carrying out the full proportionality assessment which is necessary where the Exceptions do not apply, facts and matters that were relevant to the assessment of whether either Exception applied are not “exhausted” if the conclusion is that they do not. They remain relevant to the overall assessment, and could be sufficient to outweigh the public interest in deportation either, if specially strong, by themselves or in combination with other factors”.

(7)NA(PAKISTAN) DOES NOT SAY THAT IT WILL BE RARE FOR CASES TO FALL WITHIN SECTION 117C (5)

At paragraph 34, the Court in AH(Iraq) makes an important observation and clarification by reference to NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662[2017] 1 WLR 207:

“Thirdly, at para. 33 the Court says:

Although there is no ‘exceptionality’ requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare. The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient.”

This passage makes a point which appears often in the case-law. But it is important to bear in mind that it is directed at the exercise under section 117C (6). The Court was not saying that it would be rare for cases to fall within section 117C (5)”.

(8)DECISION MAKERS SHOULD BE CAUTIOUS ABOUT TRANSPOSING STATEMENTS OF PRINCIPLE FROM ONE STATUTORY CONTEXT TO ANOTHER

At paragraph 35 , AH(Iraq) goes on to make another important observation and clarification:

“Fourthly, at para. 34 the Court addresses the relevance of the best interests of any children affected by the deportation of a foreign criminal. It says:

“The best interests of children certainly carry great weight, as identified by Lord Kerr in H (H) v Deputy Prosecutor of the Italian Republic [2012] UKSC 25[2013] 1 AC 338 at [145]. Nevertheless, it is a consequence of criminal conduct that offenders may be separated from their children for many years, contrary to the best interests of those children. The desirability of children being with both parents is a commonplace of family life. That is not usually a sufficiently compelling circumstance to outweigh the high public interest in deporting foreign criminals. …”

Again, this is a point frequently made in the case-law; but, again, it should be borne in mind that, as the reference to a “sufficiently compelling circumstance” shows, the final sentence relates only to the exercise under section 117C (6)”.

And at paragraph 158:

“,,,,,In the same way, I agree with Underhill LJ’s observations at [34] and [35] that decision-makers should be cautious about transposing statements of principle from one statutory context to another; likewise his consideration at [129] of the limited value of cross-checking outcomes in more or less similar cases. The task of the decision-maker in this respect is to consider the effect of this deportation on this child”.

(9)CONTINUED AUTHORITATIVE STATUS OF CASELAW UNDER OLD REGIME PRE PART 5A AND ASSOCIATED CHANGES TO RULES

The Court of Appeal in AH(Iraq) concluded that the caselaw decided under the old regime preceding the coming into force of Part 5A in 2014 and the associated changes to the Rules, may still be authoritative:

“36.I have not so far referred to authorities about the regime which preceded the coming into force of Part 5A in 2014 and the associated changes to the Rules. However, as this Court made clear in Akinyemi v Secretary of State for the Home Department [2019] EWCA Civ 2098[2020] 1 WLR 1843, (“Akinyemi (no. 2)”) the underlying principles relevant to the assessment of the weight to be given to the public interest and article 8 have not been changed by the introduction of the new regime (see per the Senior President of Tribunals at para. 46). The purpose of the new provisions was to give statutory force, accompanied by some re-wording, to principles which had already been established in the case-law relating to the Immigration Rules. That means that cases decided under the old regime may still be authoritative. We have already seen that this Court in NA (Pakistan) referred to the important observations of Laws LJ in SS (Nigeria) about the weight to be given to the public interest in the deportation of foreign criminals. It also referred on several occasions to the decision of this Court in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192[2014] 1 WLR 544.

37. The most authoritative exposition of the principles underlying the old regime can be found, two years after it had been superseded and even some months later than NA (Pakistan), in the decision of the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799. It is authoritative on the points of principle underlying both regimes and was so treated in Akinyemi no. 2 (see paras. 46-50). That being so, I should say that I can see nothing in the judgments of the majority inconsistent with the approach taken by this Court in NA (Pakistan) as discussed above. At para. 26 of his judgment Lord Reed summarises the effect of the Strasbourg case-law about foreign criminals, and at para. 33, like this Court in NA (Pakistan), he makes it clear that the factors referred to in those cases need to be taken into account in the assessment of the proportionality of the deportation of foreign offenders (whether or not they are “settled migrants”).

38. Reference to the previous case-law is important for the purpose of a particular point made by the Appellants in these appeals. It will be seen that in para. 32 of its judgment in NA (Pakistan) this Court expresses the test under section 117C (6) as being whether the circumstances relied on by the potential deportee “are sufficiently compelling to outweigh the high public interest in deportation”; and it uses the same formulation in paras. 33 and 34 (see paras. 36-37 above). The Appellants contend that that is the only correct formulation, and that it is dangerous to refer simply to “very compelling circumstances”. It would, to say the least, be surprising if it were wrong to use the very language of the statute; but in any event the position becomes clear when the development of the case-law is understood. This Court in NA (Pakistan) took the language of “sufficiently compelling” from the decision in MF (Nigeria). Paragraph 398 of the pre-2014 Rules had used the phrase “exceptional circumstances”. At para. 42 of its judgment in MF the Court said that that did not mean that a test of exceptionality was to be applied (a point repeated in NA (Pakistan) – see para. 36 above) and continued:

“Rather …, in approaching the question of whether removal is a proportionate interference with an individual’s Article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be ‘exceptional’) is required to outweigh the public interest in removal [emphasis supplied].”

At para. 46 it expressed the same point slightly differently, referring to “circumstances which are sufficiently compelling (and therefore exceptional) to outweigh the public interest in deportation [again, emphasis supplied]”. The effect is clear: circumstances will have to be very compelling in order to be sufficiently compelling to outweigh the strong public interest in deportation. That remains the case under section 117C (6)”.

(10)THE COURT OF APPEAL’S ANALYSIS OF THE APPROACH TO THE UNDULY HARSH TEST IN KO(NIGERIA)

The meaning of “unduly harsh” was considered by the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, [2018] 1 WLR 5273

AH(Iraq) observes the following in relation to the judgment in KO(Nigeria), which was led by Lord Carnwarth:

The word “unduly” does not import a requirement to consider “the severity of the parent’s offence”:  

The Court in AH(Iraq) observed that the actual issue in KO (Nigeria) was a very specific one, i.e whether  the word “unduly” imports a requirement to consider “the severity of the parent’s offence”.  Although in the course of Lord Carnwarth’s discussion of that issue he also expressed a  view as to the height of the threshold which the phrase “unduly harsh” connotes, that was not his primary focus.

In relation to Section 117C(5), as regards the “balancing of the relative seriousness of the offence”, Lord Carnwarth stated at paragraph 23 in KO(Nigeria):  “On the other hand, the expression ‘unduly harsh’ seems clearly intended to introduce a higher hurdle than that of ‘reasonableness’ under section 117B (6), taking account of the public interest in the deportation of foreign criminals. Further the word ‘unduly’ implies an element of comparison. It assumes that there is a ‘due’ level of ‘harshness’, that is a level which may be acceptable or justifiable in the relevant context. ‘Unduly’ implies something going beyond that level. The relevant context is that set by section 117C (1), that is the public interest in the deportation of foreign criminals. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of relative levels of severity of the parent’s offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 932[2017] 1 WLR 240, paras 55, 64) can it be equated with a requirement to show ‘very compelling reasons’. That would be in effect to replicate the additional test applied by section 117C (6) with respect to sentences of four years or more.”

Lord Carnwath’s conclusion was that the word “unduly” does not import a requirement to consider “the severity of the parent’s offence”.  The Court stated in AH(Iraq)  that the reason why there is no such requirement is that the exercise required by Exception 2 is “self-contained”:  it is irrelevant whether the sentence was at the top or the bottom of the range between one year and four: as Lord Carnwath said, the only relevance of the length of the sentence is to establish whether the foreign criminal is a medium offender or not.

The underlying concept is of an enhanced degree of harshness sufficient to outweigh the public interest in the deportation of foreign criminals in the medium offender category:

AH(Iraq) continues at paragraph 44 of its judgement:

“In order to establish that the word “unduly” was not directed to the relative seriousness issue it was necessary for Lord Carnwath to say to what it was in fact directed. That is what he does in the first part of the paragraph. The effect of what he says is that “unduly” is directed to the degree of harshness required: some level of harshness is to be regarded as “acceptable or justifiable” in the context of the public interest in the deportation of foreign criminals, and what “unduly” does is to provide that Exception 2 will only apply where the harshness goes beyond that level. Lord Carnwath’s focus is not primarily on how to define the “acceptable” level of harshness. It is true that he refers to a degree of harshness “going beyond what would necessarily be involved for any child faced with the deportation of a parent”, but that cannot be read entirely literally: it is hard to see how one would define the level of harshness that would “necessarily” be suffered by “any” child (indeed one can imagine unusual cases where the deportation of a parent would not be “harsh” for the child at all, even where there was a genuine and subsisting relationship). The underlying concept is clearly of an enhanced degree of harshness sufficient to outweigh the public interest in the deportation of foreign criminals in the medium offender category”.

KO(Nigeria) endorsed the Upper Tribunal’s self-direction in MK (Sierra Leone) as to the meaning of unduly harsh:

It was also observed that Lord Carnworth stated as follows at paragraph 27 of KO(Nigeria):

“Authoritative guidance as to the meaning of ‘unduly harsh’ in this context was given by the Upper Tribunal (McCloskey J President and UT Judge Perkins) in MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC)[2015] INLR 563, para 46, a decision given on 15 April 2015. They referred to the ‘evaluative assessment’ required of the tribunal:

‘By way of self-direction, we are mindful that “unduly harsh” does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. “Harsh” in this context denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb “unduly” raises an already elevated standard still higher.’

In relation to this the Court in AH(Iraq) stated at paragraph 45 of its judgement:

“It is clear that by describing it as “authoritative” Lord Carnwath means to endorse the UT’s self-direction in MK (Sierra Leone), which is consistent with his own explanation of the effect of “unduly” at para. 23. He goes on to note that that self-direction was followed in the later case of MAB (USA) v Secretary of State for the Home Department [2015] UKUT 435”.

Unfortunate that NA(Pakistan) was not considered by the Supreme Court in KO(Nigeria):

As regards the relationship between NA(Pakistan) and KO(Nigeria), the Court of Appeal in AH(Iraq) clarified:

  • The Supreme Court in KO (Nigeria) was concerned only with what was entailed in the assessment of undue harshness for the purpose of section 117C (5) (and paragraph 399 (a)). The appellant relied only on section 117C (5) and did not contend that there were in his case very compelling circumstances over and above Exception 2 which outweighed the public interest in his deportation.
  • It is unsurprising therefore that there is in Lord Carnwath’s judgment in KO(Nigeria) no discussion of section 117C (6) and no reference to NA (Pakistan); but it also slightly unfortunate.
  • There is a risk that, in cases involving a medium offender, tribunals who are directed only to KO(Nigeria) may think that if a potential deportee cannot bring himself within either Exception that is the end of the story. As will be clear from the discussion relating to  NA (Pakistan) that is not the case: it remains necessary in principle to conduct a full article 8 proportionality assessment, albeit one in which the public interest in deportation will only be outweighed in very compelling circumstances.
  • There is a risk that, in cases involving a medium offender, tribunals who are directed only to KO(Nigeria) may think that if a potential deportee cannot bring himself within either Exception that is the end of the story. As will be clear from the discussion relating to  NA (Pakistan) that is not the case: it remains necessary in principle to conduct a full article 8 proportionality assessment, albeit one in which the public interest in deportation will only be outweighed in very compelling circumstances.
  • Although the two-stage exercise described in NA (Pakistan) is conceptually clear, it may occasionally make the analysis unnecessarily elaborate.  There may be cases where a tribunal is satisfied that there is a combination of circumstances, including but not limited to the harsh effect of the appellant’s deportation on his family, which together constitute very compelling reasons sufficient to outweigh the strong public interest in deportation, but where it may be debatable whether the effect on the family taken on its own (as section 117C (5) requires) is unduly harsh.  (An equivalent situation could arise in relation to Exception 1: there might, say, be significant obstacles to the appellant’s integration in the country to which it is proposed to deport him, but it might be questionable whether they were very significant.) In such a case, although the tribunal will inevitably have considered whether the relevant Exception has been satisfied, it is unnecessary for it to cudgel its brains into making a definitive finding. The Exceptions are, designed to provide a shortcut for appellants in particular cases, and it is not compulsory to take that shortcut if proceeding directly to the proportionality assessment required by article 8 produces a clear answer in the appellant’s favour.

(11)COURT OF APPEAL’S GUIDANCE ON THE MEANING OF THE UNDULY HARSH TEST

As regards the  light to be shed  by references to Lord Carnwarth’s  passages in KO(Nigeria) on the meaning of “unduly harsh” (beyond the conclusion on the relative seriousness issue), the Court in AH(Iraq) concluded as follows between paragraphs 50 to 57 of its judgement:

(12)HA’S APPEAL ALLOWED IN THE COURT OF APPEAL AND BASIS OF REMITTAL TO THE UPPER TRIBUNAL

The Court of Appeal in AH(Iraq) allowed HA’s appeal and remitted the issues under sub-sections (5) and (6) of section 117C to the Upper Tribunal.

In relation to the offence, the Court noted that on 15 March 2010, HA was convicted of assisting unlawful immigration and possessing an unlawfully obtained immigration card, and also of an offence of failing to surrender to custody. He was sentenced to sixteen months’ imprisonment. The circumstances of the primary offences were that he was trying to arrange the illegal entry of his mother and his brother into the UK.

Section 117C(5) and the case of a “very much hands-on father”:

As regards Exception 2 in Section 117C(5), the Secretary of State accepted that HA had a genuine and subsisting relationship with his British partner and his British children. It was also accepted that it would be unduly harsh for them to relocate with him to Iraq: there was in any event no suggestion that they would accompany him if he were deported. The Upper Tribunal was thus only concerned with whether it would be unduly harsh for them to remain in the UK without him – the “stay scenario”.

The Court of Appeal noted that the Upper Tribunal’s exposition of the factors that it took into account in reaching its conclusion that the effect on HA’s children of his deportation would not be unduly harsh was clear and careful. Nevertheless, the Court came to the conclusion that the Tribunal’s decision could not  be sustained:

Section 117C(6) – consideration of the “ very compelling circumstances” where the offence is at or near the bottom of the scale of seriousness:

Although the Court of Appeal noted that if HA eventually succeeded in bringing himself within the terms of section 117C (5) it would be unnecessary for him to rely on section 117C (6), the Court nevertheless dealt with his appeal on this aspect and concluded:

(13)RA’S APPEAL ALLOWED IN THE COURT OF APPEAL AND BASIS OF REMITTAL TO THE UPPER TRIBUNAL

As regards the relevant offence, the Court of Appeal noted that on 10 August 2016 RA was convicted, on his plea of guilty, of an offence of under section 4 of the Identity Documents Act 2010 and sentenced to twelve months’ imprisonment. He was sent a forged Iraqi passport by his mother so that he could come and visit her in Iraq. When he presented the passport to the authorities in order to enable him to travel the forgery was detected. The Judge’s very short sentencing remarks acknowledged that RA was of good character but stated that an immediate custodial sentence was necessary because of the nature of the offence. The Judge gave him maximum credit for his guilty plea.

In allowing RA’s appeal and remitting the case to the Upper Tribunal, the Court of Appeal considered as follows:

Section 117C(5) and considerations of  intrinsic importance of a child’s British citizenship and best interests of the child:

It was observed that it was conceded in the Upper Tribunal that RA had a genuine and subsisting relationship with his British partner and a subsisting parental relationship with his British child. Accordingly section 117C (5) was engaged, and the question was whether the effect of his deportation would be unduly harsh on his wife and/or his daughter.

Section 117C(6) -consideration of the “ very compelling circumstances” and the effect of rehabilitation on re-offending:

The Court of Appeal considered that if RA eventually succeeded in bringing himself within the terms of section 117C (5) it would be unnecessary for him to rely on section 117C (6), however his challenge to the Upper Tribunal’s conclusion raised issues which it was useful for the Court of Appeal to address:

The use of “factual precedents – Tribunal has to make its own evaluation of the particular facts before it:

It was noted that RA relied on, and quoted from the decision of the Upper Tribunal in MK (Sierra Leone), where a finding was made at paragraph 42: “We turn to consider the question of whether the Appellant’s deportation would have an unduly harsh effect on either of the two children concerned, namely his biological daughter and his step son, both aged seven years. Both children are at a critical stage of their development. The Appellant is a father figure in the life of his biological daughter. We readily infer that there is emotional dependency bilaterally. Furthermore, there is clear financial dependency to a not insubstantial degree. There is no evidence of any other father figure in this child’s life. The Appellant’s role has evidently been ever present, since her birth. Children do not have the resilience, maturity or fortitude of adults. We find that the abrupt removal of the Appellant from his biological daughter’s life would not merely damage this child. It would, rather, cause a gaping chasm in her life to her serious detriment. We consider that the impact on the Appellant’s step son would be at least as serious. Having regard to the evidence available and based on findings already made, we conclude that the effect of the Appellant’s deportation on both children would be unduly harsh. Accordingly, within the matrix of section 117C of the 2002 Act, ‘Exception 2’ applies.”

It was argued on behalf of RN that the finding in MK (Sierra Leone) that it would be unduly harsh for the appellant’s children to be separated from him was equally applicable in his case, where RA’s child was broadly the same age and at a crucial stage in her development.The Court of Appeal considered whether the “stay scenario” in MK (Sierra Leone) should nevertheless have been treated by the Upper Tribunal in RA’s case as having some kind of authoritative status. The Court however agreed with the Upper Tribunal that it had no such status. Ultimately the tribunal has to make its own evaluation of the particular facts before it. The assessment of “undue harshness” is an evaluative exercise on which tribunals may reasonably differ.

If this kind of factual comparison were legitimate it might indeed be deployed against RA, since in KO(Nigeria) Exception 2 was held not to apply on facts that were at least as close to those of his case as those in MK (Sierra Leone).

(14)A DECISION THAT DOES NOT GIVE PRIMARY CONSIDERATION TO THE CHILD’S BEST INTERESTS WILL BE LIABLE TO BE SET ASIDE

Whilst Lord Justice Underhill gave the lead judgment in AH(Iran), Lord Justice Peter Jackson’s supplementary views were as follows:

  • A resulting decision to deport a parent may produce hugely detrimental consequences for a child but, provided his or her best interests have been adequately identified and weighed in the balance as a primary consideration, the decision will be lawful. But a decision that does not give primary consideration to the children’s best interests will be liable to be set aside.
  • The Section 55 duty falls on the decision-maker. A child will not usually be in a position to urge his or her point of view and the decision-maker cannot treat the child as if he or she had some burden of proof.
  • The assessment that has to be carried out is therefore one that is adequately informed and specific to the individual child as a person distinct from the offending parent. It requires the decision-maker, as part of the overall assessment, to look at matters from the child’s point of view – in the case of Exception 2, the question explicitly concerns undue harshness to the child.
  • There are two broad ways in which a decision-maker may inadvertently be deflected from giving primary consideration to the best interests of the child of a foreign criminal. One is by focusing on the position of children generally rather than on the best interests of the individual child. The other is by treating physical harm as intrinsically more significant that emotional harm
  • In order to maintain focus on the individual child, it will be helpful for the decision-maker to apply the words of statutory tests themselves.
  • For some children the deportation of a largely absent parent may be a matter of little or no real significance. For others, the deportation of a close caregiver parent where face to face contact cannot continue may be akin to a bereavement. A decision that gives primary consideration to the best interests of the child will instead focus on the reality of that child’s actual situation and the decision-maker will be more assisted by addressing relevant factors of the kind identified by Underhill LJ in AH(Iraq) at the end of paragraph 56 than by making generalised comparisons
  • The task of the decision-maker in this respect is to consider the effect of this deportation on this child.
  • The other general observation concerned the treatment of emotional harm. Section 31(9) of the Children Act 1989 defines harm as ill-treatment or the impairment of health or physical, intellectual, emotional, social or behavioural development. Reflecting  contemporary understanding of the importance of emotional development and mental health, there is no hierarchy as between physical and non-physical harm. It must therefore always be recognised that for the child the consequences of going with both parents may be experienced as far less harsh than staying with one parent. Despite this, it may be easier for decision-makers to envisage the harm that may be done by expecting a family to experience precarious or even dangerous physical conditions than to factor in at full worth the lifelong emotional harm of terminating the relationship between a child and a close parent during the child’s minority and possibly forever. Both situations are grim but for the child neither is intrinsically grimmer than the other. Provided the decision-maker faces up to the reality of the child’s situation and gives it primary consideration, the public interest in deportation may prevail, but it will not do to minimise the emotional impact on the child of the severing of ties by reference to the doubtful prospect of maintaining relationships over many years by indirect means only, or by reciting the fact that this is what deportation does.

CONCLUSION

AH(Iraq) is a most welcome decision following the barrage of negative harsh judgements over the years emanating from the Upper Tribunal and Court of Appeal on the applicability of the statutory provisions on potential deportees who have British children.

The appeals in HA and RA were allowed as the existing decisions in the Upper Tribunal did not adequately address the circumstances of the children of the foreign criminals in the way that is required under Exception 2 or under the proportionality assessment.  

The Court of Appeal thought it important to emphasis at paragraphs 34, 35 and 52 of its judgement that it should be borne  mind which factors are relevant to the exercise under section 117C (6) and those under section 117C(5) and to emphasise that the Court in NA(Pakistan) was not saying that it would be rare for cases to fall within section 117C (5). At paragraph 158 of AH(Iraq), Peter Jackson LJ agreed with Underhill LJ’s observations at  paragraphs 34 an 35 that decision-makers should be cautious about transposing statements of principle from one statutory context to another.

In practice however, having regard to the nature of decisions from the Secretary  of State made in relation to foreign criminals subject to deportation,  including decisions in the Tribunal, it is difficult to shake off the strong suspicion that the starting and end point has indeed thus far, in the majority of cases, been  that it is rare for cases to fall within section 117C (5).

Whatever may have been discussed during proceedings and how this came about, it is unfortunate that the Court in AH(Iraq) does not delve into issues but appears to abruptly conclude:

“61. I should say, finally, that Mr Pilgerstorfer referred us to a number of decisions of this Court in which KO has been applied – Secretary of State for the Home Department v JG (Jamaica) [2019] EWCA Civ 982; Secretary of State for the Home Department v PF (Nigeria) [2019] EWCA Civ 1139; Secretary of State for the Home Department v PG (Jamaica) [2019] EWCA Civ 1213; CI (Nigeria) Secretary of State for the Home Department [2019] EWCA Civ 2027; and Secretary of State for the Home Department v KF (Nigeria) [2019] EWCA Civ 2051. These have mostly turned on issues peculiar to the particular case and none has called for the kind of analysis required by the grounds of appeal argued before us. I have found nothing in any of them inconsistent with what I have said above.”

Having regard to the Court of Appeal’s approach and clarifications in  AH(Iraq),  for those cases which have gone through the appeal system and been dismissed, it may be that  further submissions by way of an application to revoke the extant deportation order may be in order, supplemented by strong new or updated evidence, for example, supportive relevantly prepared detailed school reports and/or an effective independent social workers report.

As usual, following  key judgements in the Supreme Court or Court of Appeal, the Upper Tribunal will in the next few weeks or months seek  in  future test cases(s) to grapple with the principles and interpretation of the statutory provisions arising in AH(Iraq).  The Court of Appeal’s judgment is lengthy and makes somewhat complex reading however broken down, it deals with several issues that usually arise in practice in deportation appeals- a subsequent reported judgement from the Upper Tribunal should not be convoluted but serve to clarify.

Waves of repression: it’s time that the UK Government suspended enforced removals to Zimbabwe

Unthinkable that a country signed to the Refugee Convention and the European Convention on Human Rights should have an existing policy of enforced returns to a country, where those in power, not only are intolerant of it’s citizens’ justified peaceful criticisms, but will main and kill to remain in power?

The UK Government does have such a policy. In fact, it has since 2018 been working hand in hand with the Zimbabwean government to re-document even those who have continued to express a fear of return to Zimbabwe. 

Return is to a country where the president has declared war on it’s citizens: “On August 4, President Emmerson Mnangagwa publicly denounced critics in a speech, describing them as “dark forces,” “a few rogue Zimbabweans,” and “terrorist opposition groupings.” He said: “Those who promote hate and disharmony will never win. The bad apples that have attempted to divide our people and weaken our systems shall be flushed out. Good shall triumph over evil.” He said nothing about the constitutional rights of Zimbabweans to peacefully protest or the government’s domestic and international human rights obligations”,- https://www.hrw.org/news/2020/08/06/zimbabwe-sadc-au-should-denounce-crackdown

It’s also difficult to ignore the defiant online protest movement that has been raging in Zimbabwe, reaching a crescendo in the last few days – “The Zimbabwe crackdown on activists has inspired an online campaign, with the hashtag #ZimbabweanLivesMatter, which has resulted in more than 700,000 tweets in two days, but neither SADC nor the African Union has spoken out about the situation. South African President Cyril Ramaphosa, the current chairperson of the African Union, should press President Mnangagwa to end the wave of repression and promote respect for human rights”.- https://www.hrw.org/news/2020/08/06/zimbabwe-sadc-au-should-denounce-crackdown

What impact does all this have on undocumented Zimbabweans living in the UK?

Generally, forced removals from the UK in the last few months seem likely to have only been suspended due to the effects of the Covid-19 pandemic, however very recent news reports indicate that the Home Office intend to resume removals- https://www.independent.co.uk/news/uk/home-news/home-office-asylum-seekers-deportation-coronavirus-a9657761.html

This general position will inevitably impact those targeted for removal to Zimbabwe- despite the risks to person and political instability in that country.

ENFORCED RETURNS TO ZIMBABWE STILL UK POLICY

There has been no UK Government policy for a decade against the forcible removal of undocumented Zimbabweans. What stopped mass removals from the UK  for a couple of years thereafter until 2018, was the persistent intrusion of an existing policy instituted by the Zimbabwean Government under former president Mugabe. This policy resulted in refusals by the Zimbabwean government in accepting non-consenting Zimbabwean returnees who were not willing to attend at the Zimbabwean Embassy in London and apply voluntarily for an emergency travel document. After president Mnangagwa seized power(November 2017), agreement was reached between the two governments in 2018, with the Zimbabwean government agreeing to issue  return travel documents to failed asylum seekers or the undocumented, with or without their consent-  so long as their identity  and nationality had been vetted in advance by way of interviews by Zimbabwe Embassy officials.

Asa result of this repatriation agreement between the two governments, from late 2018, travel documents have been issued by the Zimbabwean Embassy, however most have lain unused due to inability to remove returnees for one reason or the other.  Applications and fresh asylum claims have been submitted to the Home Office and in such circumstances, removals cannot take place until a determination of the claims by the UK Government or the courts.

PROLONGED VIOLENCE BY THE ZIMBABWEAN GOVERNMENT

The main reason why the UK Government for many years had in place a policy of non-forcible returns for  Zimbabwean failed asylum seekers, was due to the “turbulent political conditions” in that country- https://ukimmigrationjusticewatch.com/2016/12/13/valid-passport-with-the-home-office-zimbabweans-with-no-claims-still-very-much-removable-from-the-uk/

As above, that UK policy was lifted a decade ago.

The  other remaining layer of “protection” arising from the UK government problem of obtaining return travel documents from the Zimbabwean Embassy, fell away in 2018 in light of the repatriation agreement.

The problem in terms of protection and safety for those liable for removal to Zimbabwe stems from the current risk of ill- treatment, violence, or death they might face on return, having regard to current country conditions.

Events over the past two years indicate an entrenchment of political violence in Zimbabwe under Mnangagwa’s rule:

  • Following the July 2018 elections, but before the announcement of the results in August 2018, in response to protests in Zimbabwe, soldiers moved around beating up people  in their  homes. People were fired at and some killed despite not  having been involved in the protests nor being opposition members. Others  were  arrested, detained and ill-treated – https://www.hrw.org/news/2018/08/03/zimbabwe-least-6-dead-post-election-violence
  • In August 2019, the Zimbabwean government went as far as targeting  suspected  would – be protesters  and these perceived to be part of the opposition days before the intended demonstrations which were meant to start on 16 August 2019. Opposition supporters were targeted in advance and thereafter, some beaten and abducted. The demonstrations were banned at the last minute by the Zimbabwean authorities-  https://www.theguardian.com/world/2019/aug/16/zimbabwe-riot-police-teargas-batons-clear-protesters
  • Zimbabwean opposition activists and a member of parliament described torture, humiliation and repeated sexual assaults after being abducted by suspected state security services. The three women, all leaders of the Movement for Democratic Change’s youth movement, were arrested at a roadblock guarded by police and soldiers on 13 May 2020 at a protest in Harare against the state’s failure to provide for the poor during the country’s Covid-19 lockdown. They then disappeared until they were found on a roadside on Friday morning 60 miles away from the capital by a local man, badly injured and traumatised- https://www.theguardian.com/world/2020/may/17/zimbabwean-mdc-activists-abducted-and-sexually-assaulted

Currently, as below, ongoing waves of violence against its citizens by the Zimbabwean government continue.

THOSE AT RISK

In addition to members or supporters of the MDC (which is led by Nelson Chamisa) and those perceived to be in opposition to the government, the following are persecuted in Zimbabwe:

Political and human rights activists, critics and protestors:

Zimbabwe: SADC,AU Should Denounce Crackdown, 6 August 2020, https://www.hrw.org/news/2020/08/06/zimbabwe-sadc-au-should-denounce-crackdown:

“SADC and the African Union should call out Zimbabwe’s government for its repression and rampant abuses throughout the country,” said Dewa Mavhinga, southern Africa director at Human Rights Watch. “It’s important for these regional institutions to send strong signals to the Mnangagwa administration that flagrant violations of the African Charter on Human and Peoples’ Rights and other human rights treaties are unacceptable.

………………

The Zimbabwe authorities have increasingly arbitrarily arrested critics of the government, Human Rights Watch said”.

Amnesty International- Zimbabwe: Authorities thwart anti-corruption protests, launch a witch-hunt against activists, 31 July 2020, https://www.amnesty.org/en/latest/news/2020/07/zimbabwe-authorities-thwart-anti-corruption-protests-launch-a-witchhunt-against-activists/:

“Zimbabwean authorities have thwarted a peaceful anti-corruption protest which was planned for today and launched a witch-hunt against political and human rights activists suspected of being behind the planned demonstration, Amnesty International said today.

A number of activists have gone into hiding after police published a list of names of human rights defenders who are wanted for questioning in connection with the planned protests. A number of opposition leaders are also understood to be wanted by the police, while six others have already been arrested.

“The brutal assault on political activists and human rights defenders who have had the courage to call out alleged corruption and demand accountability from their government is intensifying. The persecution of these activists is a blatant abuse of the criminal justice system and mockery of justice,” said Muleya Mwananyanda, Amnesty International’s Deputy Director for Southern Africa.

“This latest witch-hunt and repression of peaceful dissent is a continuation of what we have seen in the country in recent years, including the abductions and arbitrary arrests of those who are critical of the government, in an attempt to muzzle differing views. The thwarting of the protest illustrates the Zimbabwean authorities’ total intolerance of criticism.”

………

“Zimbabweans must be allowed to freely exercise their human rights, including the rights to freedom of expression and peaceful assembly. The authorities must stop harassing, intimidating and arresting people who have done nothing more than peacefully express their opinions.”

Silencing of certain professions – journalists, doctors, nurses, comedians:

Amnesty International- Zimbabwe: Authorities continue their crackdown on dissent with arrest of investigative journalist and activist, 20 July 2020, https://www.amnesty.org/en/latest/news/2020/07/zimbabwe-authorities-continue-their-crackdown-on-dissent-with-arrest-of-investigative-journalist-and-activist/:

“Authorities in Zimbabwe are continuing their crackdown on dissent with the arrest of a prominent journalist, who exposed a multimillion-dollar scandal involving government officials, and a political activist, who called for a nationwide protest against corruption on 31 July, Amnesty International said today.

Hopewell Chin’ono, an investigative journalist, and Jacob Ngarivhume, an activist who called for the 31 July demonstrations, were arrested earlier today in Harare. Chin’ono has been exposing alleged corruption, including in the procurement of COVID-19 medical supplies.

“The arrests of Hopewell Chin’ono and Jacob Ngarivhume are designed to intimidate and send sending a chilling message to journalists, whistleblowers and activists who draw attention to matters of public interest in Zimbabwe,” said Deprose Muchena, Amnesty International’s Director for East and Southern Africa.

“Zimbabwean authorities must stop misusing the criminal justice system to persecute journalists and activists who are simply exercising their right to freedom of expression and peaceful assembly. The authorities must stop using the police and courts to silence dissent”.

Amnesty International- Zimbabwe: Authorities must drop charges against healthcare workers for demanding better wages, 7 July 2020, https://www.amnesty.org/en/latest/news/2020/07/zimbabwe-authorities-must-drop-charges-against-health-care-workers-for-demanding-better-wages/:

“In response to charges levelled against 13 nurses who are accused of contravening lockdown regulations, introduced as a way to address COVID-19, by protesting to demand better wages and working conditions, Muleya Mwananyanda, Amnesty International’s Deputy Director for Southern Africa, said:

“The charges levelled against these nurses, to enforce COVID-19 lockdown regulations, are clearly aimed at preventing them from organizing and speaking out against low wages and terrible working conditions.

“Zimbabwean authorities are arbitrarily using lockdown regulations to silence medical professionals and activists. The nurses were simply expressing their frustrations with their employer over the failure to address low salaries and longstanding poor working conditions. This, like other labour disputes currently unfolding in Zimbabwe, is a result of the neglect of health care services and the failure by the government to provide adequate remuneration. 

“Zimbabwean authorities must stop intimidating, harassing and suppressing dissent and instead start listening to the genuine concerns of healthcare workers. This is essential to effectively contain the spread of the virus.”

Outspoken Zimbabwe Doctor abducted, 18 September 2019, https://www.hrw.org/news/2019/09/18/outspoken-zimbabwe-doctor-abducted:

“It’s been four days since the leader of the Zimbabwe Hospital Doctors Association (ZHDA), Dr. Peter Magombeyi, went missing. According to a WhatsApp message he managed to send, three unidentified men abducted him from his home in the Budiriro neighborhood of Harare, Zimbabwe’s capital. Since then, no one has heard from him.

Magombeyi, a government employee, had organized a series of protests to demand better salaries for government doctors, ZDHA said. Prior to his abduction, he had received a text message from a local mobile number threating him with disappearance.

……….

Magombeyi’s abduction is not an isolated case. Recent months have seen an alarming spike in abductions and tortureof critics of the government and the political opposition. Since the beginning of the year, the authorities have arbitrarily arrested and prosecuted several peaceful activists on baseless charges. 

Four weeks ago, six masked gunmen abducted and beat Zimbabwean comedian and government critic Samantha Kureya(known as “Gonyeti”). Kureya was forced to drink raw sewage before she was released. Another activist, Tatenda Mombeyara, was abductedby eight masked gunmen wielding AK-47 assault rifles. The abductors accused him of organizing anti-government protests and beat him badly, breaking his left leg and a finger, before abandoning him

Human Rights Watch has been able to confirm more than 50 cases of abductions of activists and other critics of the government this year. So far, none of the perpetrators have been arrested”.

Sexual violence against women as a political weapon:

Amnesty International- Zimbabwe: Drop bogus charges against opposition leaders who suffered sexual violence,27 May 2020,  https://www.amnesty.org/en/latest/news/2020/05/zimbabwe-drop-bogus-charges-against-opposition-leaders-who-suffered-sexual-assault/:

“In response to the Zimbabwe Republic Police’s decision to charge three female opposition MDC-Alliance party youth leaders for participating in peaceful protests against hunger during the lockdown period last month, Muleya Mwananyanda, Amnesty International’s Deputy Director for Southern Africa said:

“Joana Mamombe, Cecelia Chimbiri and Netsai Marova are victims of police brutality, sexual assault and enforced disappearance. Before charging them for allegedly breaking the lockdown rules, authorities must investigate the crimes against them.

“The charges against these three women are a travesty and ploy to intimidate the opposition and send a chilling message that anyone who challenges the government is putting themselves at risk.

…………..

The three leaders from the opposition Movement for Democratic Change – Alliance (MDC-Alliance) were disappeared after they were arrested at a roadblock in Warren Park guarded by police and soldiers on 13 May.

They were part of a demonstration organized against the authorities’ failure to provide social protection for the poor during the COVID-19 lockdown. They were later dropped in Bindura after they were subjected to sexual assault violence used as a method of torture and other human rights violations.

They were charged with participating in a gathering with intent to promote public violence and breaches of the peace or bigotry as defined in section 37 of the Criminal Law (Codification and Reform) Act among others”.

Persecution of relatives of political activists or critics of the Zimbabwean government:

WATCH: Niece To Political Activist Abducted, Later Dumped After Being Tortured And Sexually Assaulted, 7 August 2020, https://news.pindula.co.zw/2020/08/07/watch-niece-to-political-activist-abducted-later-dumped-after-being-tortured-and-sexually-assaulted/:

“Noxolo Maphosa, niece to Josphat Mzaca Ngulube, a former director in the ministry of sports and recreation for Bulawayo province and Political activist who has been missing since morning has been found.

Reports suggest that she had been abducted by suspected state security agents only to be dumped later in the day outside her home after she was tortured and sexually assaulted in Bulawayo.

Maphosa’s family reported in the morning that she made a distress call saying she was being followed at 1007hrs and her phone has been off since”.

Zimbabwe: SADC,AU Should Denounce Crackdown, 6 August 2020, https://www.hrw.org/news/2020/08/06/zimbabwe-sadc-au-should-denounce-crackdown:

“On the eve of the anti-corruption protests on July 30, security forces raided the house of Mduduzi Mathuthu, a prominent journalist and editor of the online newspaper Zimlive, in Bulawayo. Failing to find him, they arrested his three nephews, Tawanda Muchehiwa, 22, Advent Mathuthu, 25, and Amandlenkosi Mathuthu, 19. The security agents also detained Mathuthu’s sister, Nomagugu Mathuthu, to compel him to turn himself in, but released her hours later. Advent Mathuthu was charged with incitement of public violence after allegedly being found with flyers saying “Mnangagwa & His Cabinet Must Resign,” but was freed by a court

The Zimbabwe chapter of the Media Institute of Southern Africa (MISA-Zimbabwe) issued a statement, emailed to Human Rights Watch, that security agents “dropped off” Mathuthu’s nephew Muchehiwa at his home on August 1 at about 10 p.m. The group said that he had been tortured by alleged security agents, resulting in serious injuries. According to medical documents reviewed by Human Rights Watch, Muchehiwa was assaulted with a wooden log and sprayed with an unknown substance all over his body. He suffered extensive bruises, an acute kidney injury, and post-traumatic stress disorder”.

THE PROBLEM OF OUT- DATED HOME OFFICE INFORMATION NOTES AND UPPER TRIBUNAL CASELAW

The relevant Home Office Country information Note, “Country and information note: opposition to the government, Zimbabwe, February 2019”, is one and half years out of date, only taking into account events running up to 1 February 2019.

The applicable country guidance caselaw, CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC) from the Upper Tribunal, published more than 7years ago, is limited to an account on Zimbabwe as at October 2012.

The anxious scrutiny that should be present is questionable when the Home Office and Tribunal apply outdated Notes and country guidance caselaw to determine asylum claims.

It is important to appreciate the context in which CM( Zimbabwe) was considered,7years ago by the Upper Tribunal:

“84. What was exceptional about the election violence in June 2008 is well described at [212] to [220] of RN. Instead of merely targeting MDC activists, members and supporters, ZANU-PF, through its use of militias deployed in urban areas, and militias, road blocks and no-go areas in certain rural provinces, unleashed a wave of persecution that brought a real risk of serious harm to those who could not demonstrate loyalty to the regime.

85. It is in this important context that the views expressed in the new material regarding the likelihood of violence at further elections needs to be viewed. With one possible exception, there is no indication that the comments in the new material, regarding election violence, ought to be read as considered assessments that any future elections would, in substance, lead to a repetition of what was seen in 2008. This went beyond anything seen before and drew the finding in RN, regarding risk on return, not just to those with a MDC profile, but to anyone who could not demonstrate loyalty to the regime.

130. As can be seen, one of the factors underpinning the Country Guidance in RN was the perception that, in late 2008, in the immediate aftermath of the power-sharing agreement, Mugabe and ZANUPF were intent on using the oppressive agents brought to bear during the election campaign, in order to eradicate the power of the MDC. By early 2011, by contrast, it was manifest that any such aim had long since failed: see [149] of EM. There was also highly compelling evidence, including from the appellants, that roadblocks were no longer a real risk: [152] and [153]. So far as Harare was concerned, the Tribunal in EM likewise had cogent evidence before it to indicate that, even during problematic periods such as the COPAC (Constitution Parliamentary Committee) campaign and the unrest in early 2011, the position in high density areas remained materially different from the period under consideration in RN. This can be seen by reading [159] to [173], [176], [201] to [205] and [243] of the EM determination (set out, for ease of reference, in Part 2 of Appendix A to this determination). So far as the unrest in early 2011 is concerned, see also paragraphs 102 to 106 above.

136. By contrast, the Tribunal in EM was assessing the position over two years after the end of the period considered in RN. The position on the ground in Zimbabwe had, for some significant time, been different. The powers haring agreement had given rise to the transitional government, with several ministries being occupied by MDC members. The feared eradication of the MDC as a political force had not happened. International (especially regional) pressure was being brought to bear on Mugabe and Zanu-PF. As [157] of EM noted, the British Ambassador could say in September 2010: “Had we in the chaos and violence of 2008 been offered a glimpse of the Zimbabwe of today, there is little doubt we would have seized it. Tsvangirai, harshly criticised for going into the coalition, has been proved right.”

These considerations, amongst others, led the Upper Tribunal in CM(Zimbabwe) to conclude in its Headnote:

“As a general matter, there is significantly less politically motivated violence in Zimbabwe, compared with the situation considered by the AIT in RN.  In particular, the evidence does not show that, as a general matter, the return of a failed asylum seeker from the United Kingdom, having no significant MDC profile, would result in that person facing a real risk of having to demonstrate loyalty to the ZANU-PF”.

The current evidence, which can be obtained from different sources, however shows politically motivated violence in Zimbabwe is on the increase and is significant. There are varied categories of persons who are at risk in Zimbabwe. The online protests movement has evolved and the regime has reacted viciously and brutally to this.  In such circumstances, a continued reference and focus in practice by the Home Office and Tribunal in seeking to look for a  “significant MDC profile” when determining claims from Zimbabwean asylum seekers, seems a wrong approach.

Regardless of whether or not a person has a profile, the position for consideration, resurrecting the principles arising from the previous case of RN(Returnees) Zimbabwe CG [2008] UKAIT 00083 , should be,  “Those at risk on return to Zimbabwe on account of imputed political opinion are no longer restricted to those who are perceived to be members or supporters of the MDC but include anyone who is unable to demonstrate support for or loyalty to the regime or Zanu-PF”. 

Unlike the position when CM(Zimbabwe) was decided, the current evidence shows political violence and repression in Zimbabwe has a wider ambit and is not sparse.

Contrary to circumstances when CM(Zimbabwe) was heard, the power sharing agreement with the MDC came to an end following general elections in July 2013, 6 months after CM was published. No ministries in government are occupied by the MDC.  As was the position when the case of RN(Zimbabwe) governed, the background evidence shows an intention by ZANU(PF) to silence or eradicate the power of the MDC led by Nelson Chamisa or those others in opposition to ZANU(PF).  Unlike the violence in late January/February 2011 as referred to above in CM, the  current background evidence indicates that 2019 and 2020 was punctuated by violence,  with the general population subjected to serious ill-treatment, not just those with a MDC profile, but  anyone unable to  demonstrate loyalty to the regime.

Unlike the violence of 2011, which was considered to have been orchestrated by a small clique of hardliners in a factionalised ZANU(PF), the violence, in particular from August 2018 was orchestrated both by the police and military, a military that ushered in president Mnangagwa through a coup following the forced resignation of Mugabe as president of Zimbabwe in 2017.

The increase in political violence or rather a change in the political situation in Zimbabwe as concerns the persecutory actions and methods of the regime is such that, for returnees, the majority who do not support ZANU(PF), there is a risk of ill-treatment on return to Zimbabwe for failure to demonstrate loyalty to the regime.

CONCLUSION

It is undeniable that Mnangagwa’s regime has unleashed a wave of persecution that brings about a real risk of serious harm to those who cannot demonstrate loyalty to the regime.

In the face of this, the current position  of the UK Government  in upholding  a position  of enforcing removals, can only be maintained on the basis that it is expected that such returnees,  must, in order to avoid ill-treatment, allow themselves to be cowered by  a brutal government,  be non- critical,  endure severe life destroying  economic hardship,  tolerate intimidation and violence from their own government.

Where that cannot logically be the expectation, a policy of suspension of forced removals to Zimbabwe should be published by the UK Government.

What you need to know to prepare an effective private life claim: dissection of Paragraph 276ADE(1) of the Immigration Rules

1.ARTICLE 8 OF THE ECHR AND PARAGRPAH 276ADE(1) OF THE IMMIGRATION RULES

Article 8 of the ECHR provides as follows:

“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Since 9 July 2012, the Immigration Rules have contained a new framework for considering applications and claims engaging Article 8 of the ECHR (the right to respect for private and family life). The rules are considered to reflect the qualified nature of Article 8, setting requirements which properly balance the individual right to respect for private or family life with the public interest in safeguarding the economic well-being of the UK by controlling immigration, in protecting the public from foreign criminals and in protecting the rights and freedoms of others.

Paragraph 276ADE(1) of the Immigration Rules provides the basis on which a person can apply for leave to remain in the UK on private life grounds. These rules, together with the Guidance on exceptional circumstances, Family life (as a partner or parent), private life and exceptional circumstances, are considered by the Secretary of State to provide a basis for considering immigration cases in compliance with ECHR Article 8. 

2.WHAT DOES PARAGRAPH 276ADE(1) OF THE RULES SAY?

The requirements to be met by an applicant for leave to remain on the grounds of private life are found in Part 7 of the Immigration Rules.

The requirements to be met under the 10-year private life route are set out in paragraph 276ADE (1) and 276ADE(2) of the Immigration Rules.

Paragraph 276ADE (1) provides as follows:

“276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and

(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK”.

3. IS THE 5YEAR ROUTE TO SETTLEMENT APPLICABLE TO PRIVATE LIFE CLAIMS?

The route to settlement (5-year or 10-year) an applicant can qualify for, depends on whether all, some or no eligibility requirements are met.

Appendix FM provides 2 routes to settlement on the basis of family life as a partner or parent. These are a 5-year route and a 10-year route where:

• the 5-year route is for a partner, parent or child who meets all the suitability and eligibility requirements of the Immigration Rules at every stage

• the 10-year route is for:

o a partner, parent or child who meets all family life suitability and certain eligibility requirements and EX.1. applies under Appendix FM

o those who meet all private life suitability and relevant eligibility requirements under Part 7 paragraph 276ADE(1)

o those who have exceptional circumstances

All eligibility requirements must be met for a partner to qualify for entry clearance or leave to remain on the 5-year route. Otherwise to qualify for entry clearance or leave to remain on a 10-year route:

• an applicant must meet all eligibility requirements, and rely on other sources of income to meet the financial eligibility requirement because there are exceptional circumstances in accordance with GEN.3.1. of Appendix FM

• an applicant must meet some and qualify for an exception to the other requirements because EX.1.(a) or (b) of Appendix FM applies

• an applicant meets some or no eligibility requirements but there are exceptional circumstances in accordance with paragraph GEN.3.2. of Appendix FM

All eligibility requirements must be met for a parent to qualify for entry clearance or leave to remain on the 5-year route.  Otherwise to qualify for entry clearance or leave to remain on a 10-year route:

• an applicant must meet all eligibility requirements, and rely on other sources of income to meet the adequate maintenance and accommodation eligibility requirements because there are exceptional circumstances in accordance with GEN.3.1. of Appendix FM

• an applicant meets some, but qualifies for an exception to certain eligibility requirements because EX.1.(a) of Appendix FM applies

• an applicant meets some or no eligibility requirements but there are exceptional circumstances in accordance with paragraph GEN.3.2. of Appendix FM

Where an applicant meets the requirements for leave to remain on the basis of private life in the UK under paragraph 276ADE(1), the applicant will be granted leave to remain for a period of 30 months on the basis of private life under 276BE(1)  of Part 7 of the Immigration Rules.

A person who is outside the UK cannot make an application to enter the UK on the basis of their private life in the UK. The private life route is a 10-year route. There is no 5-year route to settlement for those who seek to rely on their private life to remain in the UK.

4.WHAT IS THE TWO-STAGE APPROACH IN CONSIDERATION OF PRIVATE LIFE CLAIMS?

A Home Office decision maker is required to first ensure that where there is a family, that consideration is given to family life in accordance with Appendix FM of the Immigration Rules including on the basis of exceptional circumstances in accordance with GEN.3.1. to GEN.3.3. of Appendix FM, before going on to consider the private life for each individual included in the application or claim.

There is a two-stage approach in considering an application under the private life Immigration Rules:

  • Consideration “within” the Rules: – An applicant must meet all private life suitability and relevant eligibility requirements under Part 7 paragraph 276ADE(1).  Where those Immigration Rules are met, leave under the relevant rules should be granted on a 10-year route to settlement.
  • Consideration “outside” the Rules:- If an applicant does not otherwise meet the relevant requirements of those Immigration Rules,  the Home Office decision-maker is required to move on to consider, outside the rules in the case of an application for leave to remain made solely on the basis of private life in the UK, whether, in the light of all the information and evidence provided by the applicant, there are exceptional circumstances which could or would render refusal a breach of ECHR Article 8 because it would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from the information provided by the applicant would be affected. If there are such exceptional circumstances, and any other relevant requirements are met, leave to remain should be granted on a 10-year route to settlement outside the rules on the basis of private life. If not, the application is likely to be refused.

5. GENERAL GROUNDS OF REFUSAL-HOW DO THEY APPLY?

The Immigration Rules, Part 9, have 2 types of refusal on general grounds and it will depend on the reasons being used to refuse as to how a Home Office decision maker considers the application.

 If it is a mandatory ground for refusal, the application must be refused. 

If it is a discretionary ground for refusal then the decision maker can consider whether the circumstances allow the use of their discretion.

Applicants applying as a partner or parent under Appendix FM or on the basis of private life under paragraph 276ADE(1) of the Immigration Rules are not subject to the general grounds for refusal, except in the limited categories set out at rule A320 in Part 9 of the Immigration Rules.

Applicants applying for leave to remain on the basis of private life under paragraph 276ADE(1) of the Immigration Rules are only subject to the provisions in paragraph 322(1) of the general grounds for refusal. This provision only applies to applications for leave to remain, variation of leave to enter or remain or curtailment of leave. Under paragraph 322(1) of the Rules, an application is to be refused on the basis that leave to remain is being sought for a purpose not covered by the Immigration Rules.

The fact that a person does not meet the Immigration Rules does not mean that there are no rules which apply. A Home Office decision maker must only use paragraph 322(1) to refuse an applicant who has specifically applied for leave outside the rules.

6. SUITABLITY REQUIREMENTS-HOW DO THEY APPLY?

To meet the requirements of Paragraph 276ADE(1)(i) an applicant must not fall for refusal under S-LTR: Suitability.

In 10-year private life route cases, the applicant must not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM.

Any applicant who falls for refusal under suitability will not be able to meet the requirement of Paragraph 276ADE(1)(i), and will therefore not be granted leave under the Rules, regardless of whether they meet the requirements of paragraphs 276ADE(1)(ii) to (vi).

Where an application WILL be refused:

Paragraphs S-LTR.1.2. to 1.8. provide an application WILL be refused on grounds of suitability where the following applies:

  • the applicant is currently the subject of a deportation order.
  • the presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years.
  • the presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for less than 4 years but at least 12 months, unless a period of 10 years has passed since the end of the sentence; or
  • the presence of the applicant in the UK is not conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law.
  • the presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-LTR.1.3. to 1.5.), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.

Including where the applicant has failed without reasonable excuse to comply with a requirement to-

(a) attend an interview;

(b) provide information;

(c) provide physical data; or

(d) undergo a medical examination or provide a medical report.

Where the presence of the applicant in the UK is not conducive to the public good because the Secretary of State:

(a) has made a decision under Article 1F of the Refugee Convention to exclude the person from the Refugee Convention or under paragraph 339D of the Rules to exclude them from humanitarian protection; or

(b) has previously made a decision that they are a person to whom Article 33(2) of the Refugee Convention applies because there are reasonable grounds for regarding them as a danger to the security of the UK; or

(c) considers that they are a person to whom sub-paragraph (a) or (b) would apply except that (i) the person has not made a protection claim, or (ii) the person made a protection claim which has already been finally determined without reference to Article 1F of the Refugee Convention or paragraph 339D of the Rules; or

(d) has previously made a decision that they are a person to whom Article 33(2) of the Refugee Convention applies because, having been convicted by a final judgment of a particularly serious crime, they constitute a danger to the community of the UK.

Where an application WILL NORMALLY be refused:

Paragraph S-LTR.2.1.  provides that an applicant WILL NORMALLY be refused on grounds of suitability if any of paragraphs S-LTR.2.2. to 2.5. apply:

Whether or not to the applicant’s knowledge –

(a) false information, representations or documents have been submitted in relation to the application (including false information submitted to any person to obtain a document used in support of the application); or

(b) there has been a failure to disclose material facts in relation to the application.

A maintenance and accommodation undertaking has been requested under paragraph 35 of these Rules and has not been provided.

The Secretary of State has given notice to the applicant and their partner under section 50(7)(b) of the Immigration Act 2014 that one or both of them have not complied with the investigation of their proposed marriage or civil partnership.

When considering whether the presence of the applicant in the UK is not conducive to the public good any legal or practical reasons why the applicant cannot presently be removed from the UK must be ignored.

Where an application MAY be refused:

Paragraph S-LTR.4.1. provides that an applicant MAY be refused on grounds of suitability if any of paragraphs S-LTR.4.2. to S-LTR.4.5. apply:

  • the applicant has made false representations or failed to disclose any material fact in a previous application for entry clearance, leave to enter, leave to remain or a variation of leave, or in a previous human rights claim; or did so in order to obtain from the Secretary of State or a third party a document required to support such an application or claim (whether or not the application or claim was successful).
  • the applicant has previously made false representations or failed to disclose material facts for the purpose of obtaining a document from the Secretary of State that indicates that he or she has a right to reside in the United Kingdom.
  • the applicant has failed to pay litigation costs awarded to the Home Office.
  • one or more relevant NHS bodies has notified the Secretary of State that the applicant has failed to pay charges in accordance with the relevant NHS regulations on charges to overseas visitors and the outstanding charges have a total value of at least £500.

Where an applicant will normally be refused if they fail to meet the suitability requirements, or may be refused if they fail to meet these suitability requirements, the Home Office decision maker is required to look at the nature of the suitability issues being considered in the context of the application as a whole, and decide whether those issues are sufficiently serious to refuse on the basis of suitability (bearing in mind that anything which comes within these criteria should normally or may be refused) or whether there are compelling reasons to decide that the applicant meets the suitability criteria. This will be a case-specific consideration.

If the applicant falls for refusal on the grounds of suitability, the application will be refused unless it falls to be granted on the basis of exceptional circumstances.

In light of Secretary of State for the Home Department v Balajigari and Others [2019] EWCA Civ 673, an applicant should be given the opportunity to respond to an allegation, that means the applicant will fall for refusal on grounds of suitability, before the application is finally decided.

It is not possible for foreign criminals relying on private life grounds to circumvent the provisions of the Rules dealing with deportation of foreign criminals: “…..the suitability requirements are an integral part of paragraph 276ADE. Being able to meet the requirements of paragraph 276ADE of the Immigration Rules requires being able to meet the suitability requirements set out in paragraph 276ADE(i). It is because this subparagraph contains suitability requirements that it is not possible for foreign criminals relying on private life grounds to circumvent the provisions of the Rules dealing with deportation of foreign criminals” {5} Bossadi (paragraph 276ADE; suitability; ties) [2015] UKUT 00042 (IAC)

7. HOW TO SUBMIT A VALID APPLICATION

An applicant must have made a valid application for leave to remain on the grounds of private life in the UK. If the application is rejected as invalid for failure to meet the requirements of the relevant Immigration Rules, it will not be considered by the Secretary of State.

Circumstances in which there no requirement to submit a valid Article 8 application

Paragraph 276A0 of the Immigration Rules however provides that:

For the purposes of paragraph 276ADE(1) the requirement to make a valid application will not apply when the Article 8 claim is raised:

(i) as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;

(ii) where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention; or

(iii) in an appeal (subject to the consent of the Secretary of State where applicable)”.

Where the above applies, this means in essence that neither completion of an application form nor provision of Home Office application fees nor the NHS Health surcharge is required to be provided. A claimant need only provide effective representations in support of the claim setting out reasons why they should be permitted to remain in the UK, supportive evidence and any other information required by the Secretary of State during the consideration of the claim.

It is important however to note that a person who has made a claim a claim for leave on the basis of Article 8 and who is not required to make a valid application can only be considered for leave to remain under the 10-year partner, parent or private life route to settlement. If the person wishes to be considered under the 5-year partner or parent route, they must submit a valid application.

Submitting a valid Article 8 application

Home Office Guidance, Applications for leave to remain: validation, variation and withdrawal, explains how an application for leave to remain in the UK is made valid, and what to do if it is not. It also describes how an applicant can change the purpose of an application, withdraw an application and calculate the date of an application.

Changes have been made to this guidance to reflect amendments to the rules in October 2018 on the requirements for a valid application and to support the operation of the new application process introducing the UK Visas Citizenship Application Service (UKVCAS) and Support Centres (SSC) in UK Visas and Immigration (UKVI).

An application for leave to remain in the UK is valid when the requirements of paragraph 34 of the Immigration Rules are met, or where one of the exceptions set out in paragraph 34 apply. The requirements must be met by each applicant:

Specified application form:- Paragraph 34(1) of the rules sets out that the application must be made on a specified application form. The application form must be specified for the immigration route under which the applicant is applying. The relevant form in relation to an application under the private life Rules is Form FLR(FP). The application must be made online. The date of application for an online application is the date it is submitted using the online process.

Application fee:- Each applicant must pay any relevant fee for their application in full and according to the process set out on the form.  The current Home Office application fee is £1033.00 per applicant. An additional sum of £19.20 will be required in relation to biometrics enrolment. Fees regulations provide for the Home Office to retain an administration fee when rejecting an application as invalid. Where the fee has been paid but the application is invalid, the Home Office caseworker is required to reject the application and process a refund for the application minus £25 per person included in the application form. If an incorrect fee has been paid and the application is rejected as invalid, an administration fee is retained against the incorrect fee. An administration fee cannot be retained if an application is void, withdrawn before enrolment of biometrics (where the Home Office refund the fee paid) or the applicant has died. Some applicants can apply for a fee waiver or qualify for a fee exemption. The most common is the fee waiver for particular human rights based applications, including Article 8  claims. Home Office Guidance: Fee waiver: Human Rights-based and other specified applications provides the circumstances in which applicants will qualify for a fee waiver in respect of certain types of leave to remain applications.

Immigration Health Surcharge:- The Immigration Health Charge (IHC), often referred to as the ‘immigration health surcharge’ (IHS), was introduced on 6 April 2015. All applications submitted on or after this date, including applications to vary those made before 6 April 2015, must include payment of the IHS unless the applicant is exempt. The IHS is refunded if an application for leave to enter or remain is refused, rejected, withdrawn or void.

The current sums required in relation to the IHS as regards private life claims is £1000.00 per applicant. The fee is due to rise in October 2020.

Consent for applicants who are under 18 years old:-  If the applicant is under the age of 18, and not a dependant on an adult’s application, then their parent or guardian must provide their written consent to the application.

Proof of identity:- Paragraph 34 sets out that an applicant must provide proof of identity, in order of preference:

• a valid passport

• a valid national identity card – this option is not available for PBS applicants

• their most recent passport – this is the last one they held if no longer valid

• their most recent national identity card – this is the last one they held if no longer valid

• a valid travel document – this means a document, other than a passport or nationality identity card, which has been issued by the government of the UK or another state and which enables travel from one country to another

If the Home Office has the applicant’s proof of identity on the date of application, then the applicant will be unable to provide it with the application and the application is not required to be rejected as invalid on this basis.

Problems with proof of identity?

If the applicant’s proof of identity has been lost or stolen, the applicant will be expected to have contacted the relevant authorities to request a replacement. Where an applicant has not done this and so does not have a replacement, or an alternative document listed under paragraph 34, then the Home Office Caseworker may ask the application to provide the reason why they have not sought to replace their proof of identity. Where the applicant states their proof of identity has been stolen, they will be expected to provide a crime reference number with their application if possible.

Paragraph 34(5)(c) of the rules sets out that an applicant can provide a good reason beyond their control why they cannot provide any proof of identity. Reasons may include the following (this list is not exhaustive):

• there is no longer a functioning national authority to provide a new document

• there is no Embassy or consular service for their country in the UK

• there is a national authority to apply for a document, but they have run out of documents

• the applicant has made an application for a replacement document, but the issuing authority was not able to provide it before the application was made

• the applicant cannot obtain a document for reasons of national or personal security

• the national authority has unreasonably refused to provide a document, for example, if the national authority: o will only provide a passport if the applicant applies in person but there is no provision to apply in person in the UK o puts unreasonable barriers in place for the applicant

Paragraph 34(6) of the Rules states that a Home Office Caseworker may ask the applicant to provide alternative satisfactory evidence of their identity and nationality. For example, this could be a combination of:

• birth certificate

• driving licence

• national health card

• national service document

 If an applicant has not provided proof of identity, and no exception applies, a Home Office Caseworker may write to an applicant by using a validation warning and give them 10 working days to provide proof of identity. If they do not do so, the application will normally be rejected as invalid

Biometrics enrolment

An application will not be accepted as valid if the applicant has not provided their biometric information and none of the exceptions apply.

For further detail as regards the new online application process, a previous blog post can be considered: Part 2: How not to fall foul of the new application process and ensure a valid Home Office application

8. WHAT DOES “CONTINUOUS RESIDENCE” MEAN?

Paragraph 276ADE(1) requires an applicant to have had a designated length of continuous residence in the UK.

This is relevant where an applicant seeks to show that they have:

  • lived continuously in the UK for at least 20 years- 276ADE(1)(iii), or
  • lived continuously in the UK for at least 7 years – 276ADE(1)(iv), or
  • are aged 18 years or above and under 25 years and spent at least half of their life living continuously in the UK- 276ADE(1)(v), or
  • where the 20year Rule is not satisfied, the applicant is required to show they lived continuously in the UK for less than 20 years but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK – 276ADE(1)(vi)

“Continuous residence” is defined in paragraph 276A(a) of the Immigration Rules as:

“(a) “continuous residence” means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:

(i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or

(ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or

(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or

(iv) has been convicted of an offence and was sentenced to a period of imprisonment or was directed to be detained in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), provided that the sentence in question was not a suspended sentence; or

(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question”.

“Lived continuously or living continuously” is defined in paragraph 276A(c) of the Immigration Rules as:

“lived continuously” and “living continuously” mean “continuous residence”, except that paragraph 276A(a)(iv) shall not apply.”

The  relevant Guidance, Family life (as a partner or parent), private life and exceptional circumstances, states that a period of time spent in prison will not break the continuous residence of an applicant applying on the basis of their private life in the UK. Rather, time spent in prison will not be counted towards the period of residence, but time before and after that imprisonment can be aggregated to make up the full amount of time.

9.TIMING OF THE APPLICATION

Paragraph 276ADE (1) is clear that the requirements of the Rule are to be met by an applicant at the date of application.

This means for example that an applicant must first accrue the requisite 20years or 7years residence before submitting an application for leave to remain placing reliance upon  Paragraph 276ADE (1).

Where an application is submitted, say, where a child has only resided continuously in the UK for 6years and 11months, the application will not be caught by paragraph 276ADE (1)  in relation to the 7year Rule. The application will be considered by the Secretary of State outside the Rules on Article 8 grounds.  It is irrelevant that by the time the application is considered the child would have acquired the required 7years- the application will not be considered by reference to the 7year Rule. Where the application is considered outside the Rules, a grant of leave may result or the application may be refused.

If an application is submitted prematurely and then refused by the Secretary of State after the child has turned 7years of age,  at a subsequent appeal reliance can be placed on the child’s 7years residence in the UK rather than the 7year Rule –  this time with the parent placing reliance on Section 117B(6) of the 2002 Act as opposed to Paragraph 276ADE(1)(iv). As per MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705:

“2. The contexts in which the issues arise are rule 276ADE(1)(iv) of the Immigration Rules and section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). In the former case the application for leave is brought under the rule by the child; in the latter, it is a claim brought outside the Immigration Rules by a parent under article 8 ECHR. In each case persons exercising a parental role (and other siblings) may be entitled to stay with the child in the UK in circumstances where they would not qualify for leave in their own right, independently of their status as parents. In effect they may be able to piggy back on the rights of the child. In each case the child in question must have been living in the UK for more than seven years in order for the provisions to bite.

13.Some preliminary observations can be made about rule 276ADE(iv) and section 117B(6). First, they are similarly framed: both require seven years’ residence and in both a critical question is whether it would be unreasonable for the child to be expected to leave the UK. Second, the concept of seven years’ residence may not be calculated in precisely the same way in the two provisions. rule 276ADE(1) states in terms that the period must be assessed as at the date of the application. However, the Secretary of State conceded that as a result of section 85(4) of the 2002 Act, the relevant date for the purpose of section 117B is the later date when the court is making its determination. We have acted on the assumption that this is correct. Third, only the child can apply under rule 276ADE (iv), whereas section 117B is concerned with article 8 applications under which both the child and the parents can apply. Fourth, rule 276ADE is concerned with applications made on the basis of private life, whereas claims under article 8 may rely on both private and family life. Fifth, it is in my judgment a legitimate assumption that the question whether it is reasonable to expect the child to leave should be approached in the same way in each context, and no party has sought to contend otherwise”.

Additionally, where the relevant continuous residence requirement is not met at the date of refusal by the Secretary of State but is fulfilled by the date of appeal, as per TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109, where Article 8 is engaged, satisfying the Immigration Rules also means that removal is disproportionate:

“34. ………….where a person satisfies the Rules, whether or not by reference to an article 8 informed requirement, then this will be positively determinative of that person’s article 8 appeal, provided their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed”.

10. THE TYPE OF EVIDENCE REQUIRED TO DEMONSTRATE LENGTH OF RESIDENCE

To demonstrate length of residence in the UK, the Guidance, Family life (as a partner or parent), private life and exceptional circumstances, provides:

“Evidence of residence

To demonstrate length of residence in the UK, applicants will need to provide evidence of their residence here for the period they seek to rely on.

Official documentary evidence from official or independent sources, that show ongoing contact over a period of time, for example from a housing trust, local authority, bank, school or doctor, will be given more weight in the decision-making process than evidence of one-off events. You must be satisfied the evidence provided has not been tampered with or otherwise falsified, and that it relates to the person who is making the application.

To be satisfied that the UK residence was continuous, you should normally expect to see evidence to cover every 12-month period of the length of claimed continuous residence, and passports or travel documents to cover the entire period, unless satisfied on the basis of a credible explanation provided as to why this has not been submitted”.

Providing non-official “independent” documents to prove continuous residence:

Khan, R (on the application of) v Secretary of State for the Home Department [2016] EWCA Civ 416, provides:

“2.The principal issue in the substantive appeal concerns the nature of the evidence required to support an application for leave on the basis of long continuous residence. In particular, do only “official” documents suffice, and what is the status of non-official but “independent” documents and letters and of letters from neighbours and friends? ……………

57.(i) Long continuous residence: The Secretary of State’s decision was that the evidence in the letters from friends and neighbours was not acceptable evidence of residence in the UK: see [17] above. The position was maintained in the acknowledgement of service and summary grounds dated 2 October 2013, where the Secretary of State maintained that she was “plainly entitled to define the information required to substantiate an applicant’s period of residence in the UK and that a restriction to official documents is plainly reasonable”.

58.At the hearing before us, Mr Lewis acknowledged that a restriction providing that only official documents were acceptable evidence could not be defended. It was accepted on behalf of the Secretary of State that the statement in the decision letter that she would not consider such evidence was an error of law. It is not clear whether this was the reason that shortly before the hearing the Secretary of State withdrew her decisions in the two cases to which I referred at [2] above. Mr Lewis accepted that account should have been taken of the evidence before the Secretary of State, but submitted that the evidence put before her by Mr Khan for the period 1998 to 2002 carried little weight.

59.It is, to put it at its lowest, unfortunate that the clarification of the Secretary of State’s position occurred only at the hearing. Mr Ahmed submitted that the failure of the Secretary of State to file a skeleton argument in accordance with the rules was because there was no answer to the issue of principle as to whether the Secretary of State was entitled to define the categories of evidence which would be considered. Whether or not that is so, it was very unsatisfactory that the appellant and the court did not know whether the point was disputed until the afternoon of the hearing.

60.It is understandable that the Secretary of State has sought to put in place procedures to enable her officials to deal with a very large number of applications in a reasonably expeditious manner according to clear objective criteria: see, albeit in the context of the points-based system, EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517 at [28]. But in my judgment, the Secretary of State was correct in not seeking to defend the part of the decision letter in which she stated that there was no evidence of residence in the UK from 1998 to 2001 because there were no official documents to this effect.

61.I leave aside the fact that the guidance enclosed with the letter dated 23 February 2013 appeared to concern marriage/cohabitation applications, a different type of application to Mr Khan’s. I focus on what was stated in the letter itself. First, as Mr Lewis accepted, there is no authority for such a restriction in legislation or the Immigration Rules. Secondly, as recognised, for example in ZH (Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 8 at [3], the 14 year rule set out in Rule 276B(i)(b) is specifically directed to people who have managed to stay in the United Kingdom for 14 years or more without lawful authority, and is in effect an amnesty clause. It is likely that those in the United Kingdom without leave, and therefore without status, will have no official documentation, particularly in the early period of their residence. Thirdly, although most of the documents listed by the Secretary of State can be classified as “official” in the sense that they are from institutions and not individuals, a tenancy agreement and a letter from a landlord, which are listed, are difficult to classify as “official”.

Although the 14year rule is no longer in operation, having been replaced by the 20year rule,  the same reasoning equally applies in this regards in relation to submission of evidence going towards continuous residence. Having regard to paragraph 276ADE(1) and the several categories listed therein in relation to private life  issues, both official and reliable  non – official  documentary  evidence can be  submitted in applications or appeals.  

Effectively prepared letters or statements of support, backed by documentary evidencing the friend or neighbour’s identity and immigration status in the UK as well as recent proof of residence, can be presented seeking to confirm a claimant’s continuous residence in the UK.

11.THE RELEVANT HEADS OF CLAIM

The 20year Rule:

Paragraph 276ADE(1)(iii) sets out the criteria to be applied, together with the other requirements of the rules, in assessing whether to grant leave to remain to an applicant on the basis of 20 years’ continuous residence. To meet this requirement, an applicant must have lived continuously in the UK for at least 20 years at the date of application, discounting any period of imprisonment.

In relation to settlement, as per MBT, R (on the application of) v Secretary of State for the Home Department (restricted leave; ILR; disability discrimination) [2019] UKUT 414 (IAC):

“(iii) To obtain indefinite leave to remain under the Immigration Rules on the basis of long (partially unlawful) residence in cases involving no suitability concerns, paragraph 276ADE(1)(iii), taken with paragraph 276DE, requires a total of 30 years’ residence.  A person who satisfies paragraph 276ADE(1)(iii) following 20 years’ residence is merely entitled to 30 months’ limited leave to remain on the ten year route to settlement”.

The 7year Rule:

Paragraph 276ADE(1)(iv) sets out the criteria to be applied, together with the other requirements of the rules, in assessing whether to grant leave to remain to an applicant who is under the age of 18 on the basis of their private life.

To meet these requirements, a child under 18 must have lived continuously in the UK for at least 7 years at the date of application, discounting any period of imprisonment, and it would not be reasonable to expect that child to leave the UK.

The Home Office decision maker will be required to have regard to the best interests of the child as a primary consideration (but not the only or the paramount consideration). They must fully consider the child’s best interests.

The Home Office decision-maker must assess under paragraph 276ADE(1)(iv):

  • firstly, whether refusal of the application will mean that the child will have to leave the UK or is likely to have to do so:
  • if so, secondly, whether, taking into account their best interests as a primary consideration, it is reasonable to expect the child to leave the UK- in so doing there must be careful consider of all the information provided by the applicant, together with any other relevant information of which  the  decision maker is aware

In summary, in relation to the best interests of a child, the following applies:

  • A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent: see Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 at [10] per Lord Hodge. There must be a full consideration of all relevant factors.
  • The Court of Appeal developed the context for any assessment of the best interests of a child in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874 in these terms, at [58]: “…the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?”
  • The “real world” context test was endorsed by the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 at [19].

As regards the “Reasonableness test, the Secretary of  State’s Guidance, Family life (as a partner or parent), private life and exceptional circumstances, currently provides:

Is it reasonable for the child to leave the UK?

Where you decide that the answer to this first stage is yes – there is a genuine and subsisting relationship to a child, then they must go on to consider secondly, whether, taking into account the child’s best interests as a primary consideration, it is reasonable to expect the child to leave the UK. In doing so you must carefully consider all the information provided by the applicant, together with any other relevant factor and information of which you are aware.

In accordance with the findings in the case of AB Jamaica (Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661), consideration of whether it is reasonable to expect a child to leave the UK must be undertaken regardless of whether the child is actually expected to leave the UK.

The starting point is that we would not normally expect a qualifying child to leave the UK. It is normally in a child’s best interest for the whole family to remain together, which means if the child is not expected to leave, then the parent or parents or primary carer of the child will also not be expected to leave the UK.

In the caselaw of KO and Others 2018 UKSC53, with particular reference to the case of NS (Sri Lanka), the Supreme Court found that “reasonableness” is to be considered in the real-world context in which the child finds themselves. The parents’ immigration status is a relevant fact to establish that context. The determination sets out that if a child’s parents are both expected to leave the UK, the child is normally expected to leave with them, unless there is evidence that that it would not be reasonable.

This assessment must take into account the child’s best interests as a primary consideration.

You must carefully consider all the relevant points raised in the application and carefully assess any evidence provided. Decisions must not be taken simply on the basis of the application’s assertions about the child, but rather on the basis of an examination of all the evidence provided. All relevant factors need to be assessed in the round.

There may be some specific circumstances where it would be reasonable to expect the qualifying child to leave the UK with the parent(s). In deciding such cases you must consider the best interests of the child and the facts relating to the family as a whole. You should also consider any specific issues raised by the family or by, or on behalf of the child (or other children in the family).

It may be reasonable for a qualifying child to leave the UK with the parent or primary carer where for example:

the parent or parents, or child, are a citizen of the country and so able to enjoy the full rights of being a citizen in that country

• there is nothing in any country specific information, including as contained in relevant country information which suggests that relocation would be unreasonable

• the parent or parents or child have existing family, social, or cultural ties with the country and if there are wider family or relationships with friends or community overseas that can provide support:

o you must consider the extent to which the child is dependent on or requires support from wider family members in the UK in important areas of their life and how a transition to similar support overseas would affect them

o a person who has extended family or a network of friends in the country should be able to rely on them for support to help (re)integrate there

o parent or parents or a child who have lived in or visited the country before for periods of more than a few weeks. should be better able to adapt, or the parent or parents would be able to support the child in adapting, to life in the country

o you must consider any evidence of exposure to, and the level of understanding of, the cultural norms of the country

o for example, a period of time spent living amongst a diaspora from the country may give a child an awareness of the culture of the country

o the parents or child can speak, read and write in a language of that country, or are likely to achieve this within a reasonable time period

o fluency is not required – an ability to communicate competently with sympathetic interlocutors would normally suffice

• removal would not give rise to a significant risk to the child’s health

• there are no other specific factors raised by or on behalf of the child

The parents’ situation is a relevant fact to consider in deciding whether they themselves and therefore, their child is expected to leave the UK. Where both parents are expected to leave the UK, the natural expectation is that the child would go with them and leave the UK, and that expectation would be reasonable unless there are factors or evidence that means it would not be reasonable”.

Previous blog posts referring to relevant caselaw in relation to the 7year Rule and the inbuilt “reasonableness test” is set out below:

In MM (section 117B(6) – EU citizen child) [2020] UKUT 224 (IAC), the Upper Tribunal  recently concluded as per the Headnote: 

“1. The definition of “qualifying child” contained in section 117D(1) of the Nationality, Immigration and Asylum Act 2002 does not include an EU citizen child resident in the United Kingdom for less than seven years.

2. The non-inclusion of EU citizen children resident for less than seven years in the definition of “qualifying child” does not breach the EU law prohibition against discrimination on grounds of nationality”.

Young Adults aged 18 to 24:

Paragraph 276ADE(1)(iii) sets out the criteria to be applied, together with the other requirements of the rules, in assessing whether to grant leave to remain to an applicant who is aged between 18 and 24, on the basis of their private life.

To meet these requirements, an applicant aged between 18 and 24 must have lived continuously in the UK for at least half their life at the date of application, discounting any period of imprisonment.

Adult with less than 20years continuous residence and the ‘very significant obstacles to integration” test

Paragraph 276ADE(1)(vi) of the Immigration Rules, allows an applicant who is over the age of 18 and who has lived continuously in the UK for less than 20 years, to meet the requirements of this rule if they can demonstrate that at the date of application there would be very significant obstacles to the applicant’s integration into the country to which they would have to go if required to leave the UK.

12. CONSIDERATION OF THE “VERY SIGNIFICANT OBSTACLES TO INTERGRATION” TEST

Meaning of the very significant obstacles to integration- a high threshold

The relevant Home Office Guidance, Family life (as a partner or parent), private life and exceptional circumstances, states:

“Assessing whether there are ‘very significant obstacles to integration into’ the country of return

………………….

When assessing whether there are ‘very significant obstacles to integration into the country to which they would have to go if required to leave the UK’, the starting point is to assume that the applicant will be able to integrate into their country of proposed return, unless they can demonstrate why that is not the case. The onus is on the applicant to show that there are very significant obstacles to that integration, not on you to show that there are not.

You should expect to see independent and verifiable documentary evidence of any claims made in this regard, and must place less weight on assertions which are unsubstantiated. Where it is not reasonable to expect corroborating evidence to be provided, you must consider the credibility of the applicant’s claims.

A ‘very significant obstacle to integration’ means something which would prevent or seriously inhibit the applicant from integrating into the country of return. You are looking for more than the usual obstacles which may arise on relocation (such as the need to learn a new language or obtain employment). They are looking to see whether there are ‘very significant’ obstacles, which is a high threshold. Very significant obstacles will exist where the applicant demonstrates that they would be unable to establish a private life in the country of return, or where establishing a private life in the country of return would entail very serious hardship for the applicant”.

Very significant obstacles test- is country information taken into account by the Home Office?

Background country information should be taken into account by the decision maker.

The Guidance, Family life (as a partner or parent), private life and exceptional circumstances, further provides:

“Assessing whether there are ‘very significant obstacles to integration into’ the country of return

……………….

The assessment of whether there are very significant obstacles to integration will generally consider the proposed country of return, unless there is information to suggest that the applicant might have a choice about where they choose to relocate to, such as where they have a right to reside in a country other than the country of proposed return, or where they have more than one nationality. In that case you can take account of whether there are very significant obstacles to integration continuing in any of the relevant countries.

Relevant country information should be referred to when assessing whether there are very significant obstacles to integration. You should consider the specific claim made and the relevant national laws, attitudes and country situation in the relevant country or regions. A very significant obstacle may arise where the applicant would be at a real risk of prosecution or significant harassment or discrimination as a result of their sexual or political orientation or faith or gender, or where their rights and freedoms would otherwise be so severely restricted as to affect their fundamental rights, and therefore their ability to establish a private life in that country.

You should consider whether the applicant has the ability to form an adequate private life by the standards of the country of return – not by UK standards. You will need to consider whether the applicant will be able to establish a private life in respect of all its essential elements, even if, for example, their job, or their ability to find work, or their network of friends and relationships may be differently constituted in the country of return.

The fact the applicant may find life difficult or challenging in the country of return does not mean that they have established that there would be very significant obstacles to integration there. You must consider all relevant factors in the person’s background and the conditions they are likely to face in the country of return in making their decision as to whether there are very significant obstacles to integration”.

Very significant obstacles test: factors the Home Office take into account

The Home Office decision maker is required to consider any specific obstacles raised by the applicant. They will also need to set these against other factors in order to make an assessment in the individual case.

Relevant factors  referred to within the Guidance, Family life (as a partner or parent), private life and exceptional circumstances, include:

  • Cultural background
  • Length of time spent in the country of return
  • Family, friends and social network
  • Faith, political or sexual orientation and gender identity
  • Common types of claims

The Guidance provides that the nature and extent of the private life that an individual has established in the UK is not relevant when considering whether there are very serious obstacles to integration into the country of return. However, where the applicant falls for refusal under the rules, this will be relevant when considering whether there are exceptional circumstances which would make refusal unjustifiably harsh for the applicant.

13. THE TYPES OF CLAIMS WHICH HAVE MET THE ” VERY SIGNIFICANT OBSTACLES TO INTERGRATION” TEST

The Guidance, Family life (as a partner or parent), private life and exceptional circumstances is clear that  “very significant obstacles to integration” connote a high threshold, however it is possible  to overcome the test, depending on the circumstances of the case as well as the evidence submitted: 

Vulnerable severely visually impaired woman returning to Nigeria:

The claimant entered the UK 12years ago. Having stayed in the UK beyond her leave to remain,  with her sight having deteriorated significantly over the years following her arrival, years later she put in an application relying on Paragraph 276ADE1(vi).

It was put forward that the claimant, a particularly vulnerability woman, with severe visual impairment, unable to work, returning alone to Nigeria with no family to support her nor provide her with accommodation, would result in very significant obstacles in her ability to integrate to life.

In light of her condition, a lengthy absence of 12years from Nigeria with no one to turn to on return would considerably affect the claimant’s ability to adapt to life in Nigeria.

The significant distress and anxiety on return with the abrupt removal of the support system the claimant had been receiving in the UK, would leave her in a very vulnerable situation.

The background evidence showed that disabled people and those with a visual impairment or are blind are discriminated against or ridiculed, reflecting what happens in practice in Nigeria.

A country expert report as well as a detailed Consultant medical report was presented in support of the claimant’s case.

On appeal, the Tribunal accepted  the claim that there would be very significant obstacles to integration in Nigeria having regard to paragraph Paragraph 276ADE1(vi).

Lone elderly widow returning to Pakistan:

A 73 year old widow was previously refused asylum in 2017 on account of her Ahmadi religion on the basis that she would not be at risk on return. She then submitted an Article 8 claim.  In a subsequent appeal based on her private and family life in the UK, the focus was Paragraph 276ADE1(vi), ie whether there would be very significant obstacles to reintegration to life in Pakistan, having lived in the UK since 2014.

There was no dispute as to the fact that the Appellant had several British children in the UK, that her physical condition had deteriorated, that she would require assistance from someone to care for her if returned to Pakistan and that there was no evidence her children would not be able to financially support her on her return. It was accepted that any care to be provided to her would be found within the Ahmadi community. 

In allowing her appealing, the First Tier Tribunal Judge considered and concluded as follows:

  • There was the issue of the Appellant’s religion and how it would affect her integration
  • The Home Office country information policy notes showed that “owing to their distinctive and recognisable style of dress, practising Ahmadi women cannot camouflage their religious identity once they step out of their homes….It is  not unusual  for an Ahmadi woman to get harassed ..This situation often results in gendered discrimination……the situation for Ahmadi women was worse as their social activities and interaction was severely curtailed…..the segregation that women encounter  once people know  they are Ahmadi  is like a form of religious apartheid which impedes their ability to  move independently  in society, at work  and during routine activities  like shopping or going to the market.
  • In light of the harassment and discrimination Ahmadi women face in Pakistan, this meant total isolation for the Appellant and her carer because of their fear of attacks.
  • Further, taking into account the independent social worker’s report as regards the Appellant,  the Tribunal found that in view of  her age,  limited mobility, disabilities and vulnerabilities which had led to her dependency on her adult children  with no close family around in Pakistan, compounded with her subjective fear which was objectively founded of being  harassed or attached due to her religion, this could lead to depression and would have a negative impact upon her health.

The Tribunal’s conclusion was that the very significant obstacles to integration” test had been met.

Steering an Article 3 medical condition claim to satisfy the “very significant obstacles to integration” test – mental health, stigma and discrimination for a Pakistani woman:

A Pakistan woman in her mid forties, arrived in the UK 16years ago with her husband. The couple had engaged in a love marriage in Pakistan and consequently both had suffered ill-treatment at the hands of her family. Their claim based on fear of honor killing was refused by the Home Office and  following three appeals  heard between 2010 and 2018,  both tiers of the Tribunal concluded that although she was subjected to ill-treatment in Pakistan, issues of risk no longer arose on account of passage of time and there was an option of internal relocation. Meanwhile over the years the Appellant’s health  had gradually deteriorated to a significant extent, however this aspect of her claim too had been taken into account by the Tribunal in late 2018 and had been dismissed as it was found that the high threshold in Article 3 medical condition claims could not be met.

Upon mounting a further claim, with her husband as a dependent, which too was refused, as Devaseelan applied, at appeal a  different approach became necessary.

A more recent medical report established that the Appellant suffered with recurrent depressive disorder, recurrent episodes of severe psychotic symptoms and post traumatic disorder. The report referred to the Appellant’s symptoms of  low mood, hopeless, auditory and visual hallucinations and olfactory hallucinations.  She had flash backs of memories of when she was abused and beaten in Pakistan by her family members. She was going through fleeting thoughts of self ham and suicide and her situation was also taking a hold on her husband, her carer who had also begun receiving treatment for mental health issues.

It was argued, amongst other matters at appeal on behalf of the Appellant that she suffered from a serious mental condition. 

It was further submitted that background evidence  established that there was a risk of stigmatization, social isolation and  discrimination which amounted to very significant obstacles to the Appellant’s integration to life in Pakistan.

The First Tier Tribunal allowed the Appellant’s appeal on the following basis:

  • The Appellant would not by virtue of being disowned by her family have their support on return
  • The accumulation of the factors in the case, including the Appellant  having spent 16years in the UK, together with her mental health issues which been considered  by psychiatrist  as severe with a significant risk of deterioration, together with her clear inability to function without her husband’s constant support and care in relation  to every aspect of her life, were factors which cumulatively constituted very significant obstacles to the couple’s integration  to life in Pakistan.
  • The Judge attached weight to the fact that given the degree of the Appellant’s mental health  issues and her inability to communicate and function  independently  of her husband to any meaningful degree would increase her social and psychological  vulnerability in a society where there is in general  stigma and discrimination faced by those suffering  with mental health issues( by reference to the submitted background evidence).
  • The factors, whilst each on their own would not be sufficient to satisfy the test, did cumulatively cause an insurmountable obstacle to the Appellant and her husband’s integration to life in Pakistan.
  • In relation to Part 5A of NIAA 2002, it was found that there were compelling reasons that justified the grant of leave outside the Rules. The primary reason that tilted the assessment of proportionality in the Appellants’ favour was her degree of mental health issues,  her almost complete dependence on her husband’s constant support and the length of time the Appellant had spent in the UK  which had strengthened  her connections to the community.
  • The particular circumstances  of the Appellant’s case did cause significant obstacles to her integration to a normal life  in Pakistan, which include discrimination against women as set out in the Country of Information Report  as well as the evidence relating to the discrimination faced by people suffering with mental  health issues cumulatively,  rendered the Appellant’s exclusion a disproportionate interference with private life within the meaning of Article 8 of the ECHR.

The appeal was therefore allowed under the Immigration Rules and on Article 8 of the ECHR.

Gender related harm – Iraq Kurdistan woman:

The appeal raised the following issues on asylum issues:

Fear of being subjected to gender related harm on return to Iraq Kurdistan on account of having arrived in the UK, engaged in a relationship and had a child out of wedlock with a man not approved by the Appellant’s family. 

Reliance on the  asylum  claim was withdrawn on the date of the appeal hearing for various reasons, however  despite the appellant having been  in the UK for much less than 1year,  the Tribunal found that Paragraph 276ADE(1)(vi) applied, ie there would be very significant obstacles  to reintegration on return to Kurdistan  having regard also to the Country policy and information note Iraq: Kurdish ‘honour’ crimes, which summarizes as follows:

  • A person at risk because of an ‘honour’ offence is most likely to be a woman and the risk will usually come from male members of the family or tribe
  • Punishments for perceived ‘honour’ offences range from physical abuse, confinement, forced marriage, forced suicide and murder
  • Decision makers must consider what the woman has done, or is perceived to have done, for her to fear harm because of a perceived ‘honour’ offence. Such ‘offences’ can include marriages that are not accepted by the family; sex before marriage; friendships that are viewed as inappropriate; being the victim or rape or kidnapping
  • A woman at real risk of having an ‘honour’ crime being committed against her will be at risk of serious harm
  • The power of tribes and the sympathetic attitude of the authorities towards families mean that enforcement of the law is inadequate
  • Kurdish authorities are able but unwilling to provide effective protection to those at risk from ‘honour’ crimes”
  • Tribal disputes are mediated and resolved first and foremost through their own mechanisms, such as tribal courts. Tribes are very powerful and are a rival to the formal authorities in the administration of justice and protection
  • In cases involving ‘honour’, the tribe is likely to protect the family’s ‘honour’ above the integrity of the individual. A tribe therefore cannot be considered willing (even though they may be able) to provide effective protection in the case of an ‘honour’ offence.  

The Tribunal allowed the appeal having regard to Paragraph 276ADE(1)(vi) of the Immigration Rules.

Severely deteriorated country conditions in Zimbabwe and length of stay:

The dire political, social and economic situation in Zimbabwe over the past years and currently, by reference to background evidence, was put forward on behalf of the appellant  and that argument found favour with both tiers of the Tribunal on appeal.  The Appellant’s current circumstances, his length of stay in the UK(17years) and also the country situation in Zimbabwe therefore contributed substantially  to a finding that there were very significant obstacles to integration in Zimbabwe.

See previous blog post for further details: Zimbabwean national with 17years UK residence satisfies the rigorous “very significant obstacles to integration” requirement in both tiers of the Tribunal

14. CASELAW: CONSIDERATION OF THE VERY SIGNIFICANT OBSTACLES TEST

“integration” is a broad concept- will the claimant be enough of an “insider” in the country of return?

Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813

“14. In my view, the concept of a foreign criminal’s “integration” into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of “integration” calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life”.

‘very significant obstacles’ test erects a self-evidently elevated threshold:

Treebhawon and Others (NIAA 2002 Part 5A – compelling circumstances test : Mauritius) [2017] UKUT 13 (IAC)

“37.The two limbs of the test to be addressed are “integration” and “very significant obstacles”. In Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813, the Court of Appeal held that “integration” in this context is a broad concept.  See [14]:

It is not confined to the mere ability to find a job or to sustain life while living in the other country.  It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a Court or Tribunal simply to direct itself in the terms that Parliament has chosen to use.  The idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day to day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life”.

The other limb of the test, “very significant obstacles”, erects a self-evidently elevated threshold, such that mere hardship, mere difficulty, mere hurdles and mere upheaval or inconvenience, even where multiplied, will generally be insufficient in this context.

The philosophy and reasoning, with appropriate adjustments, of this Tribunal in its exposition of the sister test “unduly harsh” in MK (Sierra Leone) [2015] UKUT 223 at [46] apply”.

Integration test upheld- it involves a broad assessment including all relevant factors some of which might be described as generic”

AS v Secretary of State for the Home Department [2017] EWCA Civ 1284

“30.The UT was, however, not satisfied that there were significant obstacles or, if there were, that they would amount to very significant obstacles. Integration was multi­dimensional…………

46.At the hearing, neither counsel referred to Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 until invited to do so by the court. Additional written submissions were provided after the hearing

55.In my view, it also cannot be successfully argued that, to quote from AJ (Angola), paragraph 49, “on the materials before the tribunal any rational tribunal must have come to the same conclusion”. I do not accept Mr Buley’s submission that the differences between the rules were of no significance. It is right to say that, when considering the former version, the court applied a “rounded assessment of all the relevant circumstances” (YM (Uganda) paragraph 51, approving Ogundimu) and that the latter version requires a “broad evaluative judgment” (Kamara paragraph 14). However, the assessment and the evaluation are undertaken in the context of the different formulations which provide the relevant framework. The UT was justified in deciding that the FtT had adopted too narrow an approach and did not take potentially relevant factors into account. To repeat what Sales LJ said in Kamara, paragraph 14, “It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal to direct itself in the terms that Parliament has chosen to use”. In this case, the FtT had not directed itself in the correct terms.

56.As to the second ground of appeal, I do not consider that the UT’s reasoning, when determining the appeal on its merits, was flawed. It is clear that the UT undertook a broad evaluation when determining whether there were very significant obstacles to AS’s integration into Iran and reached a decision which it was entitled to reach. The UT assessed the obstacles to integration and the factors which would facilitate or assist with integration. In carrying out this exercise the UT expressly considered the medical evidence.

57.Mr Buley can point to the UT’s reference to AS’s ability to “adapt to life in Iran” but it is clear that it did not, as submitted by Mr Buley, substitute this for the issue of obstacles to integration. Further, whether someone is able to adapt to life in the other country easily fits within an assessment of the extent to which there are obstacles to their integration.

58.I do not consider that Mr Buley’s categorisation of some factors as “generic” is helpful. Consideration of the issue of obstacles to integration requires consideration of all relevant factors some of which might be described as generic. What Mr Buley identified as “generic” factors, as referred to above, can clearly be relevant to the issue of whether there are very significant obstacles to integration. They can form part of the “broad evaluative judgment” as is specifically demonstrated by the reference in Kamara to “good health” and “capable of working”.

59. I also reject Mr Buley’s submission that, following Kamara, whether someone is “enough of an insider” is to be determined by reference to their ties or links to the other country. This is to turn what Sales LJ said in Kamara into just the sort of gloss which he expressly warned against. It is clear, to repeat, that generic factors can be of significance and can clearly support the conclusion that the person will not encounter very significant obstacles to integration.

60.The UT undertook an assessment which took into account a range of factors including AS’s ability to speak Farsi, his ability to adapt to Iranian culture, his intelligence, his academic abilities and his character. Additionally, given Mr Buley’s submissions in respect of the relevance of the mother’s ties to Iran, it is probably helpful to quote more fully what was said about ties in Ogundimu, paragraph 124 (my emphasis):

“His father may have ties but they are not the ties of the appellant or any ties that could result in support to the appellant in the event of his return there.”

This analysis in Ogundimu, including specifically the latter part of this passage, was expressly approved in YM (Uganda). In any event, the broad evaluation required when the court is considering obstacles to integration can clearly include the extent to which a parent’s ties might assist with integration”.

The integration test was upheld in AS, which confirmed that the new test of integration involves a broad assessment including, “all relevant factors some of which might be described as generic“( such as a person’s ability to adapt to culture, their health, employability and level of education).

‘very significant obstacles’ test – the gloss in Treebhawon criticised by Court of Appeal

Parveen v The Secretary of State for the Home Department [2018] EWCA Civ 932

“8.Since the grant of permission this Court has had occasion to consider the meaning of the phrase “very significant obstacles to integration”, not in fact in paragraph 276ADE (1) (vi) but as it appears in paragraph 399A of the Immigration Rules and in section 117C (4) of the Nationality Immigration and Asylum Act 2002, which relate to the deportation of foreign criminals. In Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813, [2016] 4 WLR 152, Sales LJ said, at para. 14 of his judgment:

“In my view, the concept of a foreign criminal’s ‘integration’ into the country to which it is proposed that he be deported … is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life.”

9.That passage focuses more on the concept of integration than on what is meant by “very significant obstacles”. The latter point was recently addressed by the Upper Tribunal (McCloskey J and UTJ Francis) in Treebhawon v Secretary of State for the Home Department [2017] UKUT 13 (IAC). At para. 37 of its judgment the UT said:

“The other limb of the test, ‘very significant obstacles’, erects a self-evidently elevated threshold, such that mere hardship, mere difficulty, mere hurdles and mere upheaval or inconvenience, even where multiplied, will generally be insufficient in this context.”

I have to say that I do not find that a very useful gloss on the words of the rule. It is fair enough to observe that the words “very significant” connote an “elevated” threshold, and I have no difficulty with the observation that the test will not be met by “mere inconvenience or upheaval”. But I am not sure that saying that “mere” hardship or difficulty or hurdles, even if multiplied, will not “generally” suffice adds anything of substance. The task of the Secretary of State, or the Tribunal, in any given case is simply to assess the obstacles to integration relied on, whether characterised as hardship or difficulty or anything else, and to decide whether they regard them as “very significant”.

19.I cannot accept that submission. The bare assertion that the Appellant has “lost all connections” with Pakistan and has no-one there who can support her is plainly insufficient. In the first place, it is prima facie surprising that she should have lost all connections with Pakistan. I accept that it is not impossible, but if it is indeed the case the Secretary of State was entitled to expect some particularised explanation of how it had come about, and why, in consequence, she would face such problems on return. It would be important to know about her life in Pakistan before she came to this country, where she lived, what family and friends she had, whether she worked and what her educational or other qualifications were. It would also be important to know what had become of her family and friends and how, despite what the Secretary of State tends to call “modern methods of communication”, she had lost touch with them. Nothing of this kind was provided in the original application, nor indeed has it been provided at any stage in the course of the litigation. Without it, the Secretary of State was in my opinion justified in finding that the Appellant had not demonstrated the existence of very significant obstacles to (re-)integration in Pakistan. (I also note, though this is not essential to my reasoning, that in the part of the decision dealing with Appendix FM it is noted that the Appellant’s husband’s passport shows that he has twice in recent years been to Pakistan for “family visits”.)”.

Prove destitution by clear evidence:

MA (Prove Destitution) Jamaica CG [2005] UKIAT 00013

“11.Mr Kuranche suggested that the appellant would be destitute in the event of her removal to Jamaica. This is a concerning allegation. We recognise, of course, that a person who faces destitution, or something approaching destitution, may well be entitled to say that her removal is disproportionate to the proper purpose of enforcing immigration control. However, if a person wants to make out that claim even though the standard of proof is a low one, it must be made out by clear evidence. The Adjudicator had before him some evidence from the appellant and her daughter supporting the claim that the appellant would be destitute but the claim was not explained or developed in any detail. We do not know from the evidence how the appellant has supported herself in the United Kingdom for all these years or what opportunity she has had, or taken, to build up capital. Mr Kuranche said that she has been maintained by state benefits. That may be right. We are satisfied Mr Kuranche advanced his instructions in good faith but there was no evidence about that and there was no evidence before the Adjudicator. In any event, is far too superficial to be a proper explanation of the appellant’s maintenance over a period of many years”.

15.THE TEST TO BE APPLIED WHERE THE VERY SIGNIFICANT OBSTACLES TEST IS NOT MET- CONSIDERATION OUTSIDE THE RULES

Appellants must demonstrate a compelling case in order to displace the public interests inclining towards their removal from the United Kingdom:

Treebhawon and Others (NIAA 2002 Part 5A – compelling circumstances test : Mauritius) [2017] UKUT 13 (IAC)

“38.The finding that Mr Treebhawon’s case does not satisfy the test enshrined in paragraph 276ADE(1)(vi) of the Rules is readily made. If required to leave the United Kingdom, his future will lie in the country of his birth where he has spent most of his life (33 of his 46 years). He is an educated, evidently intelligent man with a command of all of the languages commonly used in Mauritius. He is plainly familiar with the culture of the country. There is no apparent reason why he will be unable to renew certain relationships and friendships and develop others. He has overcome ill health and is now fit for work, albeit we accept that finding employment will not be easy. He has maintained some contact with his mother and sister and we refer to our finding above that, as a matter of probability, he and his children will return to the mother’s home where they lived previously. In sum, the “very significant obstacles” test is not satisfied by some measure. It follows that no error of law has been committed on behalf of the Secretary of State in failing to find that Mr Treebhawon’s case satisfies this (or any) provision of the Rules.

39.The second legal test in play is to be applied to all five Appellants………..

47. We return to the question posed above: what is the legal test to be applied in a case such as the present?  The answer, which we deduce from a combination of the governing statutory provisions and, in particular, the decision in Rhuppiah, is that these Appellants must demonstrate a compelling (not very compelling) case in order to displace the public interests inclining towards their removal from the United Kingdom.  In formulating this principle, we do not overlook the question of whether the adverb “very” in truth adds anything to the adjective “compelling”, given that the latter partakes of an absolute flavour.  It seems to us that the judicially formulated test of “very compelling circumstances” has been driven by the aim of placing emphasis on the especially elevated threshold which must be overcome by foreign national offenders, particularly those convicted of the more serious crimes, who seek to displace the potent public interests favouring their deportation.  In contrast, immigrants such as these Appellants confront a less daunting threshold..

51.Our balancing of the salient features of the Appellants’ cases with the public interests engaged, all as set forth above, yields the conclusion that the public interests must prevail. The Appellants’ cases, in combination, unquestionably possess a certain appeal and various attractions. No reasonable or humane court or tribunal could, in our judgement, consider otherwise. Furthermore, we must accord a primacy of importance to that aspect of the third to fifth Appellants’ best interests identified above. However, we consider that the effect of contemporary immigration law is that this superficially seductive case falls short, measurably so, of overcoming the threshold necessary to demonstrate a disproportionate interference with private life rights under Article 8 ECHR. The most sympathetic view of the Appellants’ combined cases – which we have adopted – does not warrant any different conclusion in law. While we are mindful that the Article 8 private life claim of each of these Appellants has its distinctive personal features, given their different ages and circumstances, we find nothing to warrant a different conclusion in respect of any of the Appellants individually”.

16. WHETHER EXCEPTIONAL CIRCUMSTANCES EXIST SUCH THAT REFUSAL OF LEAVE COULD CONSTITUTE A BREACH OF ARTICLE 8 ECHR

In every case that otherwise falls for refusal under the private life Immigration Rules, the Home Office decision maker is required to  move on to consider whether in light of all the information and evidence provided by the applicant, there are exceptional circumstances which would render refusal a breach of ECHR Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family.

Where the application has been considered solely on the basis of private life in the UK under paragraph 276ADE(1) – DH, the decision maker must consider whether there are such exceptional circumstances outside the Immigration Rules.

What does ‘exceptional circumstances’ mean?

Guidance, Family life (as a partner or parent), private life and exceptional circumstances, clarifies:

‘Exceptional circumstances’ means circumstances which could or would render refusal of entry clearance or limited leave to remain a breach of ECHR Article 8 (the right to respect for private and family life), because refusal could or would result in unjustifiably harsh consequences for the applicant, their partner or a relevant child, or would result in unjustifiably harsh consequences for another family member whose Article 8 rights it is evident from the application would be affected by a refusal.

‘Exceptional’ does not mean ‘unusual’ or ‘unique’. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in the Immigration Rules have been missed by a small margin.

Instead, ‘exceptional’ means circumstances in which refusal of the application could or would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under Article 8”.

What is the meaning of “unjustifiably harsh consequences” ?

Guidance, Family life (as a partner or parent), private life and exceptional circumstances, states:

“‘Unjustifiably harsh consequences’ are ones which involve a harsh outcome(s) for the applicant or their family which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others

This involves consideration of whether refusal would be proportionate, taking into account all the facts of the case and, as a primary consideration, the best interests of any relevant child. The case-law makes clear that where the applicant does not meet the requirements of the rules, and has established their family life in ‘precarious’ circumstances (for example, when they have limited leave to enter or remain in the UK), something ‘very compelling’ is required to outweigh the public interest in refusal. Likewise, where family life is formed or exists with a person outside the UK who has no right to enter the UK and does not meet the requirements of the rules for entry clearance, Article 8 does not require that they be granted entry, in the absence of such exceptional circumstances.

A ‘relevant child’ means a person who:

• is under the age of 18 years at the date of application

• it is evident from the information provided by the applicant would be affected by a decision to refuse the application”.

The Supreme Court judgment in Agyarko and Ikuga, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 11, upheld the Secretary of State’s approach in applying a test of ‘unjustifiably harsh consequences’ for the applicant or their family in deciding (in a case falling for refusal under the Immigration Rules) whether exceptional circumstances existed such that refusal of leave would constitute a breach of Article 8.

The 5 Razgar questions- consideration of Article 8 claims:

Where a person cannot meet the requirements of the Immigration Rules, their claim to remain in the UK must proceed outside the Rules, by way of a claim under Article 8 of the ECHR.

In Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661, the Court of Appeal stated:

“43.In R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368, at para. 17, Lord Bingham of Cornhill set out the questions that arise for determination when removal is resisted in reliance on Article 8 grounds:

“(1) will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life?

(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(3) If so, is such interference in accordance with the law?

(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”

44.In that context, courts and tribunals must have regard in particular to the matters set out in Part 5A of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014.”

In relation to the “balance sheet” approach in the structure of judgements where Article 8 is engaged, Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60, Lord Thomas stated:

“82.  I agree with the judgment of Lord Reed and in particular the matters he sets out at paras 37-38, 46 and 50. I add three paragraphs of my own simply to emphasise the importance of the structure of judgments of the First-tier Tribunal in decisions where article 8 is engaged. Judges should, after making their factual determinations, set out in clear and succinct terms their reasoning for the conclusion arrived at through balancing the necessary considerations in the light of the matters set out by Lord Reed at paras 37-38, 46 and 50. It should generally not be necessary to refer to any further authority in cases involving the deportation of foreign offenders.

83. One way of structuring such a judgment would be to follow what has become known as the “balance sheet” approach. After the judge has found the facts, the judge would set out each of the “pros” and “cons” in what has been described as a “balance sheet” and then set out reasoned conclusions as to whether the countervailing factors outweigh the importance attached to the public interest in the deportation of foreign offenders”.

Exceptional circumstances: grant of leave to remain

Where the application has been considered solely on the basis of private life in the UK under paragraph 276ADE(1)-DH, and the applicant does not otherwise meet those rules, but it is considered that there are exceptional circumstances which would render refusal a breach of ECHR Article 8 (because it would result in unjustifiably harsh consequences for the applicant or their family), leave to remain should be granted on Article 8 grounds outside the Immigration Rules.

The applicant will normally be granted leave to remain outside the Immigration Rules for a period of 30 months, with scope to qualify for settlement after 10 years’ continuous lawful residence in the UK.

17.COMPELLING COMPASSIONATE FACTORS IN THE ALTERNATIVE

The Guidance, Family life (as a partner or parent), private life and exceptional circumstances, provides in short:

“Where circumstances do not warrant a grant of leave on the basis of Article 8, you must consider if a grant of leave is warranted on compelling compassionate grounds.

Compelling compassionate factors are, broadly speaking, exceptional circumstances that warrant a period of leave for a non-Article 8 reason. An example might be where an applicant or family member has suffered a bereavement and requests a period of stay to deal with their loss or to make funeral arrangements.

In considering compassionate factors, you must consider all relevant factors raised by the applicant

If any compassionate factors are raised in the application, you should consult the following leave outside the rules guidance:

• Leave outside the rules (LOTR) (internal)

• Leave outside the rules (LOTR) (external)

You should ensure that where an applicant is granted limited leave to remain on the basis of compassionate factors, the decision letter must clearly show that the grant has been given outside the Immigration Rules on the basis of compassionate factors, and must be clear that the grant is not being made on the basis of their Article 8 family or private life.

It is unlikely that leave will be granted for a period of 30 months, but instead should be a short period of leave to remain granted to reflect the individual circumstances of the application. For example, it may be appropriate to grant a period of 6 months’ leave to enable completion of final examinations taking place within 4 months, to allow for the examinations and to arrange travel”.

18. HOW TO APPROACH AN ARTICLE 8 PRIVATE LIFE CLAIM

  • Obtain a full factual and immigration history of the individual claim
  • Prepare an effective supportive statement  for the applicant and where relevant address the issues set out above at paragraph 19 of Parveen v The Secretary of State for the Home Department [2018] EWCA Civ 932
  • Gather supportive documentary evidence showing the applicant has lived continuously in the UK for the number of years that they say they have
  • By way of effective representations, where relevant, show the 7years residence has been met and in particular, explain by reference to the facts, caselaw, Home Office Guidance and background evidence, how the “reasonableness” test has been satisfied
  • Via effective representations, show that although the claimant has lived continuously in the UK for less than 20 years, there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK 
  • Show a combination of factors applicable to the claim as set out in the material to be submitted before the Secretary of State which mean that the requirements of the Immigration Rules have been met
  • By reliance upon the background evidence, show the country conditions applicable to the relevant country of origin e.g, the unemployment problems, harsh country conditions, stigma or discrimination issues, etc and impact on  reintegration. 
  • As regards employment, efforts need to be shown that the claimant has sought to source employment from the relevant country whilst in the UK, for example sending  out emailed job applications, attaching a CV further showing the  source of the corresponding  job advert. Ultimately, indicate any responses or lack thereof received in relation to the job applications.   Explain any inability to transfer skills acquired in the UK in the relevant country of return  
  • Obtain  a relevant country expert report where applicable, a medical report or Independent Social Worker’s Report
  • Where relevant, show the lack of any ties or support network in the country of origin. Where there is family in the country of return, show why it is not possible to rely upon them for practical support following arrival.  The claimant’s statement should provide clarifications.
  • If there are any family members or friends in the UK, explain why reliance cannot be placed upon money remittances from them to enable integration.
  • Additionally, explain why any financial support to be provided via the UK Voluntary Return Assistance scheme will likely be depleted in a relatively short time upon arrival 
  • Seek to research the cost of rental accommodation in relation to the town or city of arrival or the place of origin in the country of return and explain why the applicant will be unable to afford the rent and therefore is likely to be destitute on return.
  • In seeking to reply upon exceptional circumstances, also place reliance upon any significant delays in the consideration of past or present claims and refer to relevant caselaw having regard to the effect of delay upon the proportionality balancing exercise in the consideration of an Article 8 claim.
  • Where relevant,  in seeking to establish exceptional circumstances, show any applicable particularly strong features of the  applicant’s private  life  in the UK such as sustained volunteer work, value of the claimant in the community, seeking to rely also on  paragraph 53 of Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803:“ … Although a court or tribunal should have regard to the consideration that little weight should be given to private life established in [the specified] circumstances, it is possible without violence to the language to say that such generalised normative guidance may be overridden in an exceptional case by particularly strong features of the private life in question …”

Updated Home Office Covid-19 Guidance confirms a visitor or applicants with leave of up to 6 months can switch into a family or private life route

Prior to today’s updated Guidance, a blog post of much earlier today enquired whether Home Office Covid- 19 Guidance as published on 29 May 2020, permits visiting partners of British citizens to switch into the family life partner route: https://ukimmigrationjusticewatch.com/2020/06/08/by-passing-entry-clearance-requirements-does-home-office-covid-19-guidance-permit-visiting-partners-of-british-citizens-to-switch-into-the-family-life-partner-route/

The conclusion within the blog post, despite what is provided for in Appendix FM and usual accompanying Guidance, was that a visitor should be able to switch into the family life route on the following basis:

“On its face, if it is to be argued that  a visitor currently in the UK can rely on the published Home Office Covid-19 Guidance so as to switch  and submit a leave to remain application under the family life Rules, this appears in direct contradiction to existing Rules, other  “usual” Guidance  and caselaw as set out above.

It is important to note however that the new Covid-19 Switching Guidance is a temporary measure, a concession,  in response to the current pandemic, likely intended to only allow such switching applications to be submitted within a period of defined duration. To that extent, where temporary Guidance is brought expressly into existence by the Government to cater for a certain event or circumstances, then the current Covid-19 Guidance is not inconsistent with the Immigration Rules.

………………

In the absence of  any category application routes being set out, the Covid-19 Advice expressly disapplies or waives the requirement to return broad and apply for entry clearance. It should be capable of reliance  for example by visitors intending to submit a leave to remain application on the family life partner route…….. What would be the point of refusing such an application for  leave to remain on the basis the applicant should return abroad and apply for entry clearance where they  cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19)?”

The blog post concludes by suggesting on how best to proceed with an application under the family life route as a visitor.

The Home Office have today, 8 June 2020, updated their Covid-19 Guidance to confirm that up to 31 July 2020,  applicants in the UK as a visitor or with leave of up to 6 months can switch into a family or private life route:- Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents

The updated Guidance should therefore be read as published in context as follows:

“If you’re applying to stay in the UK long-term

You can apply from the UK to switch to a long-term UK visa until 31 July 2020 if your leave expires between 24 January 2020 and 31 July 2020. This includes applications where you would usually need to apply for a visa from your home country.

You’ll need to meet the requirements of the route you are applying for and pay the UK application fee.

This includes those whose leave has already been extended to 31 July 2

You can apply online. The terms of your leave will remain the same until your application is decided.

……………………….

If you’re applying to enter the UK or remain on the basis of family or private life

There are temporary concessions in place if you’re unable to meet the requirements of the family Immigration Rules to enter or remain in the UK due to the coronavirus outbreak. Up to 31 July, applicants in the UK as a visitor or with leave of up to 6 months can switch into a family or private life route provided the requirements of the Immigration Rules are otherwise met. See If you’re applying to stay in the UK long-term.

If you’re unable to travel back to the UK due to coronavirus travel restrictions and your leave has expired, a short break in continuous residence will be overlooked. You are expected to make your next application as soon as possible.

………………………………”

The switching concession as updated temporarily takes the sting out of the recently published Upper Tribunal decision in  Younas (section 117B (6) (b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC) (24 March 2020)

The effect of Younas  has been considered in a recent blog post: https://ukimmigrationjusticewatch.com/2020/06/02/chikwamba-and-zambrano-cases-real-practical-effect-of-younas-is-erosion-and-dilution-of-provisions-underpinning-family-life-claims/

Younas recently concluded in relation to paragraph EX.1(b) of Appendix FM (insurmountable obstacles to family life with a partner continuing outside the UK), that as the appellant had leave as a visitor when she submitted  her application in 2016 and that leave continued by operation of section 3C of the Immigration Act 1971, she therefore did not satisfy the Immigration Rules, Appendix FM because she did not meet the eligibility immigration status requirement at E-LTRP.2.1.

Having regard to the updated Home Office Guidance, it appears that had Younas applied for leave to remain as a partner whilst holding a visitor visa relying on the Home office Covid-19 switching Concession, she would likely have been granted leave to remain by the Home Office in the first instance. The adverse credibility findings and inconsistencies that emerged in Younas seem to have largely come about during the course of oral evidence before an unyielding Upper Tribunal Panel following a Home Office refusal decision.

In essence, the current position is that those like Younas who sought to apply for leave to remain on the family life route pre Covid-19, whilst holding a visitor visa, are unlikely, having regard to the decision in the Upper Tribunal, to succeed under the Immigration Rules Appendix FM – unless the claim succeeds on exceptional circumstances outside the Rules.

Conversely, a visitor who arrived in the UK  two months ago, can on the basis of the concession, switch into the  family route and not have it held against them as contrary to their previously stated intention to return abroad at the end of their visit.

Without further clarificatory Guidance on the concession, it currently appears that a visitor can seek to purposively arrive in the UK before 31 July 2020, intently focused on relying on the published Guidance and then apply to switch into the family life route. The concession is welcome, however without further Guidance to cater for the gap, the Home Office appear to have left it wide open for new visitor arrivals, especially non -visa nationals, to legally circumvent the requirement to obtain  prior entry clearance as a partner of a British citizen or parent of a British citizen child and so legitimately apply for leave to remain whilst in the UK.

By-passing entry clearance requirements: Does Home Office Covid-19 Guidance permit visiting partners of British citizens to switch into the family life partner route?

Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents , https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents,  is stated to provides advice for visa customers and applicants in the UK, visa customers outside of the UK and British nationals overseas who need to apply for a passport affected by travel restrictions associated with coronavirus.

For those persons in the UK, the Advice/Guidance provides that if their  leave expires between 24 January 2020 and 31 July 2020, their visa will be extended to 31 July 2020  if  they cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19).

Although the Guidance also advises that affected persons are expected to take all reasonable steps to leave the UK before 31 July 2020 where it is possible to do so, relevantly, the current publication also states:

“If you’re applying to stay in the UK long-term

You can apply from the UK to switch to a long-term UK visa until 31 July 2020 if your leave expires between 24 January 2020 and 31 July 2020. This includes applications where you would usually need to apply for a visa from your home country.

You’ll need to meet the requirements of the route you are applying for and pay the UK application fee.

This includes those whose leave has already been extended to 31 July 2020.

You can apply online. The terms of your leave will remain the same until your application is decided”.

The Guidance in this regards is very brief and provides no clarification of the types of applicants or categories of the Rules in relation to which reliance can be placed so that leave to remain applications can be submitted.

The Guidance however is in writing, in English and published as within the public domain for all to see and read.  

Is it therefore possible to do exactly what it says to do on the tin – for example, follow what is said in that Guidance for a visiting spouse or unmarried partner of a British citizen resident in the UK and apply to switch from visitor status to the family life partner  route?

The prohibition on visitors applying for leave to remain under the family life route

Both the Immigration Rules Appendix FM, relevant main  Guidance and caselaw make it clear that a visitor cannot meet the requirements of the family Immigration Rules for leave to remain in the UK.  The immigration status requirements of the Rules for Partner applications contain this prohibition.

The Immigration Rules Appendix FM provide:

“Immigration status requirements

E-LTRP.2.1. The applicant must not be in the UK-

(a) as a visitor; or

(b) with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings

……………”

Home Office Guidance, Family life (as a partner or parent), private life and exceptional circumstances, Version 8.0,2 June 2020 currently provides:

Immigration status requirements

To meet the eligibility requirements for leave to remain, the applicant must not be in the UK:

• as a visitor

• with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé, fiancée or a proposed civil partner, or was granted pending the outcome of family court or divorce proceedings

EX.1. does not apply when an applicant is in the UK with such leave

Where the applicant is in the UK as visiting friends or on holiday on a standard visit visa, it means that they have undertaken leave the UK before their visa expires. In all cases, visa or non-visa nationals have satisfied the entry clearance officer or immigration officer that they will do so, or have used eGates to enter the UK on presumption of compliance with the conditions of their stay. Those wishing to come to the UK to settle here as a partner or parent should apply for entry clearance under the family Immigration Rules. In view of that, a visitor cannot meet the requirements of the family Immigration Rules to remain in the UK.

Where an application is made by a visitor to remain, it is only where there are exceptional circumstances, that a person here as a visitor can remain on the basis of their family or private life on a 10-year route.

…………………….”

In seeking to cement the requirements of the Rules, the Upper Tribunal in  Younas (section 117B (6) (b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC) (24 March 2020) found as a fact that:

“61.The appellant travelled to the UK from the United Arab Emirates in May 2016 (whilst pregnant with the child of her British citizen partner) as a visitor. Their relationship was subsisting at the time. The appellant claims that her intention was to return to the United Arab Emirates and it is only because of difficulties with the pregnancy, and then with her child’s health, that she did not do so. However, she did not adduce any medical evidence to support her claim to have been unable to return to the United Arab Emirates either whilst pregnant or shortly after the child was born. Nor has she explained why she did not return to Dubai prior to her United Arab Emirates residency visa expiring in order to avoid a situation where her only option, other than to remain in the UK, would be to return to Pakistan, where she claims she would be without any support or accommodation. We have no doubt, and find as a fact, that the appellant entered the UK with the intention of giving birth and remaining with her partner permanently. We also find that she had this intention when she completed the 2016 application form in which she stated she only wished to remain in the UK for a further six months”.

Younas also found in relation to paragraph EX.1(b) of Appendix FM (insurmountable obstacles to family life with a partner continuing outside the UK):

“72. ……. It is not sufficient, in order to satisfy the requirements of Appendix FM, that a partner of a UK citizen is able to show that there would be “insurmountable obstacles” to the relationship continuing outside the UK. It is also necessary to satisfy certain of the eligibility requirements specified in paragraph E – LTRP, including that the applicant must not be in the UK as a visitor (E-LTRP.2.1). The appellant had leave as a visitor when she submitted the 2016 application and that leave continued – and continues – by operation of section 3C of the Immigration Act 1971. She therefore does not satisfy the Rules because she does not meet the eligibility immigration status requirement at E-LTRP.2.1”.

What also proved fatal to her appeal, is the Upper Tribunal’s conclusion in Younas that the public interest required her removal because:

“98. We have found that the appellant (a) entered the UK as a visitor even though her real intention was to remain in the UK with her partner; and (b) remained in the UK despite stating in the 2016 application that she would leave after 6 months. We agree with Mr Lindsay that, in the light of this immigration history, the public interest in the appellant’s removal from the UK is strong; and the strength of that public interest is not significantly diminished because she will be able to re-enter the UK. The integrity of, and the public’s confidence in, the UK’s immigration system is undermined if a person is able to circumvent it, as the appellant has attempted to do by entering the UK as a visitor with the intention of remaining permanently. Requiring the appellant, in these circumstances, to leave the UK in order to make a valid entry clearance application as a partner, far from being merely a disruptive formality, serves the important public interest of the maintenance of effective immigration controls”.

The Court of Appeal also concluded in TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109:

“41.The FtT allowed PG’s appeal on the basis that she qualified for leave to remain under paragraph EX.1(b). That was a clear error of law because PG was a visitor. PG did not meet the requirements of E-LTRP.2.1. Her status was precarious. While in the UK as a visitor, with a visa of less than five months, she began a relationship with the man who became her husband only days after she arrived and they were married one month later. The only decision that was relevant is accordingly an article 8 consideration outside the Rules which was not undertaken by the FtT”.

On its face, if it is to be argued that  a visitor currently in the UK can rely on the published Home Office Covid-19 Guidance so as switch  and submit a leave to remain application under the family life Rules, this appears in direct contradiction to existing Rules, other  “usual” Guidance  and caselaw as set out above.

It is important to note however that the new Covid-19 Switching Guidance is a temporary measure, a concession,  in response to the current pandemic, likely intended to only allow such switching applications to be submitted within a period of defined duration. To that extent, where temporary  Guidance is brought expressly into existence by the Government to cater for a certain event or circumstances, then the current Covid-19 Guidance is not inconsistent with the Immigration Rules.

Covid- 19  switching Guidance effect  –  express waiver or concession

The new Guidance does not, for example, state that visitors can now  apply to switch into the family life partner route without the need to return abroad and apply for entry clearance.

As above, the Guidance is brief,  however it can be stated that its intent is clear enough- to permit applicants who would normally be required to apply for entry clearance to switch into long term routes without leaving the UK.  Without such a conclusion, then the switching advice is redundant, illusory,  it might as well not be there.  

In the absence of  any catergory application routes being set out, the Covid-19 Advice expressly disapplies or waives the requirement to return broad and apply for entry clearance. It should be capable of reliance  for example by visitors intending to submit a leave to remain application on the family life partner route.

The entry clearance application that a returning visitor with a qualifying partner would need to make abroad is by reference to the Immigration Rules, Appendix FM.

The family life route is for those seeking to enter or remain in the UK on the basis of their family life with a person who:

  • is a British Citizen
  • is settled in the UK, or
  • is in the UK with limited leave as a refugee or person granted humanitarian protection (and the applicant cannot seek leave to enter or remain in the UK as their family member under Part 11 of the Immigration Rules).

GEN.1.2 of Appendix FM provides that “partner” means:

  • the applicant’s spouse;
  • the applicant’s civil partner;
  • the applicant’s fiancé(e) or proposed civil partner; or
  • a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application

Section EC-P.1.1. of Appendix FM provides the requirements to be met for entry clearance as a partner.

Section S-EC sets out the suitability requirements for an entry clearance application as a partner.

Section E-ECP.1.1. states that the eligibility requirements for entry clearance as a partner  requires all of the requirements in paragraphs E-ECP.2.1. to 4.2. to be met:

  • Relationship eligibility requirements
  • Financial eligibility requirements
  • English language eligibility requirement

Relevantly, as the Covid-19 Advice appears to disapply the requirement to return broad and apply for entry clearance, a visiting Partner should be able submit an application for  leave to remain as the partner of a qualifying  Sponsor, switching into the family life route.

Section R-LTRP.1.1. sets out the requirements to be met for limited leave to remain as a partner.

Section S-LTR.1.1. lists the suitability requirements for limited leave to remain as a partner.

Section E-LTRP.1.1. states that to qualify for limited leave to remain as a partner, all of the eligibility requirements of paragraphs E-LTRP.1.2. to 4.2. must be met:

  • Relationship eligibility requirements
  • Immigration status eligibility requirements***
  • Financial eligibility requirements
  • English language requirement

In relation to visitors, as regards the immigration status requirement, it is SectionE-LTRP.2.1.  that provides that an  applicant must not be in the UK as a visitor or with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings.

Visitors would normally be required to return abroad and submit an application for entry clearance under the relevant Rule, however as from 24 March 2020, following the Home Office published Covid -19 Guidance, it has been expressly clarified by the Home Office that:

  • until 31 July 2020, if a person’s leave expires between 24 January 2020 and 31 July 2020, such a person  can apply from within the UK to switch to a long-term UK visa and this includes applications where a person would usually need to apply for a visa from their home country.

The Guidance provides that if a person has already had their visa extended to 31 May 2020 ( by reference to earlier published Covid -19 Guidance) their visa will be extended automatically to 31 July 2020.

A visitor holding such extended leave, should on the basis of the Home Office Guidance be in a position to specifically rely on that advice( printing it out on the date of submission of the  online application)  and making representations including providing supportive evidence to show that the requirements of the relevant Immigration Rules are met – https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-fm-se-family-members-specified-evidence

What would be the point of refusing such an application for  leave to remain on the basis the applicant should return abroad and apply for entry clearance where they  cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19)?

Moreover, it was only on 29 May 2020 that the Covid -19 Guidance clarified:

“Some UK Visa Application Centres (VACs) are resuming services, where local restrictions allow. For updates to the status of VACs in your country, contact:

Ongoing global restrictions mean some UKVI services will remain closed. Contact your local VAC to find out the latest status. Where services are resuming, existing customers will be contacted”.

On- line application form FLR(FM) is used by those applying  to extend their stay in the UK as the partner or dependent child of someone who is settled in the UK or who is a refugee or under humanitarian protection. In  the absence of any other newly published application form, apart from Form FLR(FP), this seems the most relevant and appropriate form for use on switching into the family life route.

To enable online submission of the application form, fees of £2052.20 to be paid online will  be collected per applicant, broken down currently as follows:

  • Home Office application fee- £1033.00
  • Immigration Health Surcharge- £1000.00
  • Biometric enrolment fee- £19.20

Section 3C leave whilst the leave to remain application is pending

If a visitor were to timely  and validly apply for leave to remain as a partner, relying on the Home Office Covid-19 Switching Advice, they would obtain the benefit of Section 3C leave pending a decision on the application or connected timely submitted appeal.

The Upper Tribunal in Younas concluded at paragraph 72: “The appellant had leave as a visitor when she submitted the 2016 application and that leave continued – and continues – by operation of section 3C of the Immigration Act 1971. She therefore does not satisfy the Rules because she does not meet the eligibility immigration status requirement at E-LTRP.2.1.”

The current Covid-19 Guidance set out above concludes by stating: “You can apply online. The terms of your leave will remain the same until your application is decided”.

If still viewed as holding visitor leave prior to the  expiry of the automatic extension until  31 July 2020, a visitor who therefore applies validly for leave to remain before that visitor visa expires, continues to hold the status of a visitor until a decision on the application is made by the Home Office. The applicant will not be viewed as an overstayer whilst the leave to remain application is under consideration in these circumstances.

5year or 10year route to settlement?

The route to settlement (5-year or 10-year) an applicant can qualify for, depends on whether all, some or no eligibility requirements are met.

All eligibility requirements must be met for a partner to qualify for entry clearance or leave to remain on the 5-year route.

Otherwise to qualify for entry clearance or leave to remain on a 10-year route:

• an applicant must meet all eligibility requirements, and rely on other sources of income to meet the financial eligibility requirement because there are exceptional circumstances in accordance with GEN.3.1. of Appendix FM

• an applicant must meet some and qualify for an exception to the other requirements because EX.1.(a) or (b) of Appendix FM applies

• an applicant meets some or no eligibility requirements but there are exceptional circumstances in accordance with paragraph GEN.3.2. of Appendix FM

The Home Office can be asked to consider the leave application on the basis that although the applicant is without the requisite entry clearance( which has been waived) and is a visitor  who has placed reliance upon  the Home Office Covid -19 Advice, having regard to the submitted representations and evidence:

  • Leave should be granted on the basis that all the eligibility requirements of the Immigration Rules for a partner have been met- leading to a grant on the 5year route to settlement; alternatively
  • Leave should be granted where all the eligibility requirements of the Immigration Rules for a partner  have not been met, leading to grant of leave on the 10year route to settlement.

Possible issues

The Secretary of State could consider a leave to remain application under the family life partner route from a person currently holding leave as a visitor relying on the Covid-19  Switching Guidance and grant leave to remain, as requested, as a partner.

Alternatively, the result of such an application could be a refusal of leave on the basis that the published Covid-19 Switching Advice does not have the effect sought by the applicant i.e that visitors can apply in-country on the family life route under Appendix FM  without returning abroad and applying for entry clearance. The Secretary of State could also add on that no exceptional circumstances have been identified justifying a grant of leave to remain outside the Rules on Article 8 grounds. 

A refusal decision should generate an in -country right of appeal to the Tribunal ( unless the claim is certified as clearly unfounded under Section 94 of the 2002 Act, providing for an out -of -country right of appeal).

A visitor in the UK whose leave has been extended to 31 July 2020, may have:

  • contemplated remaining in the UK beyond their leave for whatever reason( thereby remaining here illegally as an overstayer, which is a criminal offence)
  • intended to apply for leave to remain under Appendix FM whatever the outcome, whether or not the Covid -19 Advice caters for their position

It is such persons who could most likely consider taking advantage of the Home Office switching Guidance and apply timely for leave to remain as a partner, seeking to switch into the settlement route.

Where a visitor considers that the current Covid-19 switching Advice will not cover them for the purposes of a leave  to remain application as a partner under the Rules, then consideration should be given to leaving the UK by 31 July 2020(or by any further published extension date)  so as to make the relevant entry clearance application and avoid becoming an overstayer.

The potential to switch relying upon the Covid-19 Guidance not only impacts visitors wishing to apply for leave as Partners under the Rules  but also visitors  seeking to apply for leave to remain as a Parent under Appendix FM. Visiting parents of  the following:

  • a child who is a British Citizen or settled in the UK; or
  • a child that has lived in the UK continuously for at least the 7 years immediately preceding the date of application

are not eligible for leave to remain under Appendix FM because the immigrations status requirements apply to them as well:

Immigration status requirement

E-LTRPT.3.1. The applicant must not be in the UK-

(a) as a visitor; or

(b) with valid leave granted for a period of 6 months or less, unless that leave was granted pending the outcome of family court or divorce proceedings;

…………………”

The Home Office should be publishing fuller and detailed Guidance to cater specifically for  switching applications by those whose leave has been extended to 31 July 2020.  What category of applicants are affected and so able to apply to switch? Is there to be a specific type of application form for use? The current circumstances leave room for some degree  of speculation  and therefore  not conducive to the need to give certain and clear advice.  For now however, what the Covid-19 Guidance on switching translates to is a concession or temporary policy by the Government, allowing those individuals who would normally be required to leave the UK and apply for entry clearance from abroad,  to apply in – country to extend their leave in the UK on a long term route.