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.  

Chikwamba and Zambrano cases: Real practical effect of Younas is erosion and dilution of provisions underpinning family life claims

Younas (section 117B (6) (b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC) (24 March 2020) alarmingly erodes  and dilutes the ready reliance that applicants, have in the last few years, been placing upon Chikwamba and Zambrano.

Younas inevitably affects partners and parents of British citizens, who for one reason or the other fall foul of Appendix FM and are required to return abroad and apply for entry clearance.

In Younas, the Upper Tribunal delved deep and produced a  judgment touching upon several matters, all of which, for those in Younas’s position as well as for overstaying claimants,  impact negatively upon their ability to place successful reliance  on family life provisions as provided for in the Rules and legislation.

The practical effect of the Upper Tribunal’s revamped and rather narrow interpretation of Chikwamba (following the introduction of Part 5A of the 2002 Act),  results in partners who having failed to place reliance on its principles to resist  temporary removal, being almost certainly shut out from relying successfully on Zambrano arguments, if they also have a British citizen child residing in the UK.

The Upper Tribunal’s interpretation of  Chikwamba, Zambrano and Section 117B(6) brings into existence new judicial guidance and concerningly, a reading into legislation that which on its face, was not previously apparent.

Sections 117B(6) as currently worded in relation to the reasonableness test and reliance upon Zambrano is being disapplied or suspended by the Upper Tribunal, where there is a prior conclusion that a claimant can temporarily return abroad and apply for the requisite clearance.  

For section 117B(6),  issues for the Upper Tribunal have evolved to considerations of whether it is reasonable to expect the British child to leave the UK for a temporary period with the parent (as opposed to an indefinite period whilst the parent makes an application for entry clearance from abroad).

In relation to Zambrano, considerations of loss of enjoyment of the substance of the British child’s Union citizenship rights have been interpreted to be only theoretical if limited to a temporary period(as opposed to indefinite exclusion, whilst the primary carer, accompanied by the child, makes an application for entry clearance).

The subject of the unfavourable judgement in Younas was a Pakistani national who entered the UK as a visitor in 2016, whilst not only in a relationship with a British citizen but also pregnant with his child.  Two months following arrival and still holding leave as a visitor, she submitted an application intending to obtain a grant of  leave for 6months. Subsequently, following the birth of her British child she sought to vary the outstanding application, seeking leave to remain on family life grounds with her  British husband and child.

 In all this, Younas never overstayed her leave, timely applying to extend it but ultimately retaining her status as a visitor by virtue of Section 3C leave.

These facts, combined with the shaky oral evidence given to the Upper Tribunal,  provoked adverse credibility findings and led to the conclusion that Younas had  sought to circumvent the immigration system.

The punishment result was temporary banishment to Pakistan for up to 9months along with her British child, to a country Younas had not lived in,  so as to apply for entry clearance as a spouse.

(A). Appendix FM of the Immigration Rules –  satisfaction of the insurmountable obstacles test

It was argued  on behalf of  the appellant  that  she satisfied the requirements of paragraph  EX.1(b) of Appendix FM (insurmountable obstacles to family life with a partner continuing outside the UK) and her appeal should be allowed on this basis.

The Upper Tribunal indicated within their judgement that they found some matters  problematic and concluded as follows:

  • 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 claimed that her intention was to return to the United Arab Emirates and it was 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 had 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 claimed she would be without any support or accommodation.
  • The Upper Tribunal indicated they had no doubt, and found as a fact, that the appellant entered the UK with the intention of giving birth and remaining with her partner permanently. It was also found 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.
  • Although the appellant had never lived in Pakistan, she had maintained a connection to the country, visiting on several occasions. The Upper Tribunal found it far more likely than not that on those visits she stayed with family, rather than in hotels. In the absence of any evidence pointing to the contrary – it was more likely than not that she was familiar with the language, culture, religion and societal norms of Pakistan, having grown up in a Pakistani family and within the Pakistani community in Dubai.
  • The Upper Tribunal  observed that rather than state matters in a straightforward way the appellant and her partner had sought to present their evidence in a way that they believed would assist them. In relation to the appellant’s partner’s income, in the 2018 application form the appellant stated that her partner earned approximately £1,600 a month after income tax and other deductions. This corresponded to £19,200 before tax a year and would be sufficient to meet the financial eligibility requirements under Appendix FM. In contrast, at the hearing before the Upper Tribunal,  in oral evidence   it was stated that the appellant’s partner earned £250-£300 per week (corresponding to £13,000 – £15,600 per year). The appellant was found to be seeking to convey the opposite – that her partner’s income did not meet the threshold under Appendix FM.
  • The Upper Tribunal found that it was more likely than not that the appellant’s partner’s current income met the financial eligibility threshold but that even if it did not he could in a short space of time increase his income (by, for example, taking on more carpet fitting work from different sources) in order to meet the threshold.
  • Taking into consideration the time it was likely to take to compile the necessary evidence for an entry clearance application, to secure an appointment in Pakistan, and to receive the decision once the application is made,  the Upper Tribunal found that the appellant would be out of the UK (in Pakistan, awaiting a grant of entry clearance) for between 4 and 9 months.
  • The appellant was the primary carer for her daughter. Given her partner’s work commitments and the child’s young age, it was more likely than not that the appellant would bring her daughter with her to Pakistan if she was required to leave the UK.
  • the appellant’s daughter was noted to be a healthy child with no developmental or other problems.

Inability to rely on Appendix FM as a Partner – appellant had leave as a visitor at time of application:

At paragraph 72, the Upper Tribunal concluded that Younas was not entitled to leave under Appendix FM and her application under the Immigration Rules therefore failed:

“……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”.

(B). Reliance upon Chikwamba principles and consideration of the public interest

Younas argued that there was a principle, derived from the House of Lords’ judgment in Chikwamba v SSHD [2008] UKHL 40 , that there is no public interest in removing a person from the UK in order to make an entry clearance from abroad that would be certain to succeed. Her case was that as she would succeed in her application from outside the UK it followed that she fell squarely within the Chikwamba principle and her appeal should be allowed on that basis.

The Secretary of State’s position was that Younas was expected to leave the UK for only a limited period of time in order to apply for entry clearance to join her partner and that the issue  in the appeal was whether her temporary removal from the UK was proportionate. It was argued that Younas would be able to travel to Pakistan in order to apply for entry clearance and that it was  not being  contended that she would be able to return to the United Arab Emirates, where she had been born and lived.

Whether temporary removal would be disproportionate – immigration history, prospective length/degree of family disruption and circumstances in country of return relevant:

Between paragraphs  83 to  89 of  Younas, the Upper Tribunal  made the following observations by reference to caselaw:

  • “Neither Chikwamba nor Agyarko support the contention that there cannot be a public interest in removing a person from the UK who would succeed in an entry clearance application. In Agyarko, a case in which the Chikwamba principle was not at issue, it is only said that that there “might” be no public interest in the removal of such a person” {83}.
  • more than a mere legal argument placing reliance on Chikwamba principles was required.
  • It was noted that in Chikwamba, Lord Brown engaged in a detailed consideration of the individual and particular circumstances of the appellant (specifically, that the conditions in Zimbabwe were “harsh and unpalatable”, her refugee husband could not accompany her and she would need to bring to Zimbabwe – or be separated from – her child).
  • Chikwamba itself was a “stark” case, certain to be granted leave to enter”,  if an application were made from outside the UK –  in such a case there was no public interest in removing the applicant to Zimbabwe.
  • The Chikwamba principle will require a fact-specific assessment in each case.
  • What had to be considered were the individual circumstances of the case – in Chikwamba, Lord Brownidentified factors relevant to both whether there is public interest in removal (a person’s immigration history) and whether temporary removal would be disproportionate (the prospective length and degree of family disruption, and the circumstances in the country of temporary return).
  • The Upper Tribunal also noted that in R (on the application of Chen) v Secretary of State for the Home Department) (Appendix FM – Chikwamba – temporary separation – proportionality) IJR [2015] UKUT 189 (IAC), Upper Tribunal Gill observed that Lord Brown was not laying down a legal test when he suggested in Chikwamba that requiring a claimant to make an application for entry clearance would only “comparatively rarely” be proportionate in a case involving children, and that in all cases it will be for the individual to demonstrate, through evidence, and based on his or her individual circumstances, that temporary removal would be disproportionate”.

Approach to Chikwamba after introduction Part 5A of the 2002 Act – the four Questions:

As to considerations of the Chikwamba principles in conjunction with the public interest considerations in Part 5A of the 2002 Act, the Upper Tribunal noted as follows at paragraph 90 of their judgement:

“Chikwamba pre-dates Part 5A of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”), which was inserted by the Immigration Act 2014. Section 117A(2) of the 2002 Act provides that a court or tribunal, when considering “the public interest question,” must have regard to the considerations listed in section 117B (and 117C in cases concerning the deportation of foreign criminals, which is not relevant to this appeal). The “public interest question” is defined as “the question of whether an interference with a person’s right to respect for private and family life is justified under article 8(2)”. There is no exception in Part 5A of the 2002 Act (or elsewhere) for cases in which an appellant, following removal, will succeed in an application for entry clearance. Accordingly, an appellant in an Article 8 human rights appeal who argues that there is no public interest in removal because after leaving the UK he or she will be granted entry clearance must, in all cases, address the relevant considerations in Part 5A of the 2002 Act including section 117B(1), which stipulates that “the maintenance of effective immigration controls is in the public interest”. Reliance on Chikwamba does not obviate the need to do this”.

The Upper Tribunal  in  Younas set out four questions requiring consideration in matters seeking to rely on Chikwamba:

“91. In the light of the foregoing analysis, we approach the appellant’s Chikwamba argument as follows.

92.  The first question to be addressed is whether her temporary removal from the UK is a sufficient interference with her (and her family’s) family life to even engage article 8(1). If article 8(1) is not engaged then the proportionality of removal under article 8(2) – and therefore the Chikwamba principle – does not arise

93.   We did not hear argument on this point and both parties proceeded on the basis that article 8 is engaged. In this case, where one of the consequences of temporary removal will be that the appellant’s daughter is separated from her father for several months, we are in no doubt that article 8(1) is engaged. However, even though the threshold to engage article 8(1) is not high (see AG (Eritrea) [2007] EWCA Civ 801 and KD (Sri Lanka) [2007] EWCA Civ 1384), it is not difficult to envisage cases (for example, where there would not be a significant impediment to an appellant’s partner accompanying the appellant to his or her country for a short period) in which article 8 would not be engaged.

94.   The second question is whether an application for entry clearance from abroad will be granted. If the appellant will not be granted entry clearance the Chikwamba principle is not relevant. A tribunal must determine this for itself based on the evidence before it, the burden being on the appellant: see Chen at 39. In this case, we have found, for the reasons explained above, that, on the balance of probabilities, the appellant will be granted entry clearance if she makes an application from Pakistan to join her partner.

95.   The third question is whether there is a public interest in the appellant being required to leave the UK in order to undertake the step of applying for entry clearance; and if so, how much weight should be attached to that public interest.

……………

97.   If there is no public interest in a person’s removal then it will be disproportionate for him or her to be removed and no further analysis under Article 8 is required. On the other hand, if there is at least some degree of public interest in a person being temporarily removed then it will be necessary to evaluate how much weight is to be given to that public interest so that this can be factored into the proportionality assessment under article 8(2).

…………………

99. The fourth question is whether the interference with the appellant’s (and her family’s) right to respect for their private and family life arising from her being required to leave the UK for a temporary period is justified under article 8(2). This requires a proportionality evaluation (i.e. a balance of public interest factors) where consideration is given to all material considerations including (in particular) those enumerated in section 117B of the 2002 Act”.

Focus on immigration history, conduct, circumvention of immigration system- strong public interest in the appellant’s removal from the UK:

In relation to the third question of  whether  there was a public interest in the appellant being required to leave the UK in order to undertake the step of applying for entry clearance, the Upper Tribunal found against Younas , focusing on her immigration history and conduct:

“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”.

In relation to the fourth question, the Upper Tribunal stated that the evidence before it indicated that temporary removal would result in a substantial interference with the appellant’s family life.  It was noted most significantly, the appellant’s daughter would be separated from her father (who would not be able to accompany her because of his work commitments and responsibilities for his sons) for several months. In addition, the appellant would be separated from her partner, and would have to reside in a country she had never previously lived in. However, there was no reason the appellant would not be able to live comfortably (her partner could provide her with financial support during her temporary period outside of the UK) and she would be living in a culture with which she was familiar and in proximity to extended family.

The Upper Tribunal concluded that even though the appellant’s removal would be followed by her re-entry, there was, nonetheless a strong public interest in her being required to leave the UK in order to comply with the requirement to obtain valid entry clearance as a partner. Her removal, in order to make an entry clearance application from Pakistan was proportionate.

(C ). Section 117B(6) and the reasonableness test- reasonable for British child to leave the UK with her claimant mother

Younas argued that it would not be reasonable to expect her daughter to leave the UK (even for a temporary period, whilst her application for entry clearance was pending) and therefore, in accordance with s117B(6) of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”), the public interest did not require her removal.

The Upper Tribunal concluded that Section 117B(6) (no public interest in removal where it would not be reasonable to expect a qualifying child to leave the UK ) did not apply because they rejected the argument that it was not reasonable to expect the appellant’s child to leave the UK.

The Upper Tribunal noted that Section 117B(6) is a self-contained provision, such that where the conditions specified therein are satisfied the public interest does not require the person’s removal( MA (Pakistan) & Ors v Upper Tribunal [2016] EWCA Civ 705)

The Upper Tribunal further noted  that the following was accepted by the Secretary of State:

  • that the appellant met the condition in 117B(6)(a) – the appellant had a genuine and subsisting parental relationship with a qualifying child
  • that it would not be reasonable to expect the appellant’s daughter to leave the UK indefinitely – 117B(6)(b)

What the Secretary of State however argued  was that the condition in section 117B(6)(b) was not met because it would be reasonable to expect the appellant’s daughter to leave the UK temporarily whilst her mother made an application for entry clearance from Pakistan.

The Upper Tribunal observed the following:

  • Section 117B(6)(b) requires a court or tribunal to assume that the child in question will leave the UK
  • A court or tribunal must base its analysis of reasonableness on the facts as they are (having assumed, for the purpose of this analysis, that the child will leave the UK with his or her parent or parents). The “real world” context includes consideration of everything relating to the child, both in the UK and country of return, such as whether he or she will be leaving the UK with both or just one parent; how removal will affect his or her education, health, and relationships with family and friends; and the conditions in the country of return. The conduct and immigration history of the child’s parent(s), however, is not relevant. See KO at paras. 16 – 18.
  • The “real world” circumstances in the country of return may be significantly different if a child will be outside the UK only temporarily rather than indefinitely
  • It was noted that both parties agreed that the length of time a child will be outside the UK is part of the real world factual circumstances in which a child will find herself and the Upper Tribunal were not presented with (and could not conceive of) any good reason why this should not be the case. Accordingly, whether it would be reasonable to expect the appellant’s daughter to leave the UK was to be assessed on the basis of the finding of fact made by the Tribunal that she will be outside the UK, with the appellant, for 4 – 9 months.

Reasonable to expect the British child to leave the UK for a temporary period:

The Upper Tribunal concluded as follows:

  • It was not accepted that the appellant’s daughter would face emotional turmoil as a result of spending up to nine months in Pakistan. She was a young child who would be with her mother (who was her primary carer) in the country of her mother’s citizenship. Although the appellant had not lived in Pakistan, she was familiar with the culture, environment, societal norms and has extended family. The evidence did not indicate that Pakistan would be a difficult or harsh environment for the appellant’s child. She had not yet started school, so there would be no disruption to her education. Nor was there a reason to believe that spending a period of time in Pakistan would be detrimental to her health as there was no evidence before the Tribunal that she had any medical problems.
  • The appellant’s daughter would be separated from her father and step siblings. However, the separation would only be temporary, during which time she would be able to remain in contact with them through telephone, skype and other means of communication (and her father could visit her).
  • Whilst the Tribunal considered that it would be in her best interests to not have to relocate to Pakistan without her father,  they were  equally of the view that she would not suffer any detriment by doing so, given her young age and the temporary nature of the separation.
  • Although the daughter would be temporarily removed from nursery school, there was no evidence to justify the conclusion that this would have any materially adverse effect on her education and general development.

Taking all of these factors into consideration, the Tribunal was satisfied that it would not be unreasonable to expect the appellant’s daughter to leave the UK for a temporary period whilst her mother applied for entry clearance.

(D). Reliance upon Zambrano principles

The appellant  also advanced a further argument  that it would be unlawful to remove her from the UK  as she was entitled to a right of residence in order to avoid her daughter being deprived of the genuine enjoyment of the substance of her European Union Citizenship rights in accordance with Ruiz Zambrano v Office national de l’emploi (Case C-34/09) and Patel v Secretary of State for the Home Department [2019] UKSC 59.

The Upper Tribunal noted as follows in relation to the relevant principles:

“118.  Article 20 of the Treaty on the Functioning of the European Union (“TFEU”) precludes national measures which have the effect of depriving citizens of the European Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. This was applied in Zambrano to mean that a parent of a child who is a British citizen (and therefore also a European Union citizen) is entitled to a (derivative) right of residence to avoid the child being compelled to leave the territory of the European Union as a result of his or her parent being required to leave.

119.    The scope of the concept of “being compelled” to leave the European Union was recently considered by the Supreme Court in Patel v Secretary of State for the Home Department [2019] UKSC 59. At paragraph 30 Lady Arden stated:

 The overarching question is whether the son would be compelled to leave by reason of his relationship of dependency with his father. In answering that question, the court is required to take account, “in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium” ( Chavez-Vilchez, para 71). The test of compulsion is thus a practical test to be applied to the actual facts and not to a theoretical set of facts. As explained in para 28 of this judgment, on the FTT’s findings, the son would be compelled to leave with his father, who was his primary carer. That was sufficient compulsion for the purposes of the Zambrano test. There is an obvious difference between this situation of compulsion on the child and impermissible reliance on the right to respect for family life or on the desirability of keeping the family together as a ground for obtaining a derivative residence card. It follows that the Court of Appeal was wrong in this case to bring the question of the mother’s choice into the assessment of compulsion. (Emphasis added)”.

Loss of enjoyment of the substance of the British child’s Union citizenship rights will only be theoretical(as limited to a temporary period as opposed to indefinite exclusion):

The Upper Tribunal reached the following findings:

  • The Tribunal noted they had found, as a fact, that the appellant was the primary carer of her daughter and that if she was required to leave the UK she would take her daughter with her.
  • Accordingly, applying the interpretation of the Zambrano test in Patel, the Upper Tribunal found that the appellant’s daughter would be compelled to leave the UK as a result of her mother leaving the UK.
  • It was noted that in Zambrano, as well as the subsequent CJEU cases interpreting and developing the derivative right of residence described therein, the children in question faced indefinite exclusion from the territory of the Union. In these cases, it followed inextricably (and therefore was not in dispute) that the children, if compelled to leave the UK, would be deprived of the genuine enjoyment of the substance of Union citizenship rights protected by Article 20 TFEU.
  • The  Upper Tribunal stated however in Younas, in contrast, the appellant and her daughter would be outside the Union (in Pakistan) for only a temporary period (of up to 9 months).
  • Whilst in Pakistan the appellant’s daughter would be deprived of the enjoyment of the substance of her Union citizenship rights. The deprivation she would face, however, was only theoretical because if she were to remain in the UK for this temporary period it was extremely unlikely that, as a young child attending nursery, she would engage in any activities (such as moving within the Union) where her rights as a Union citizen would be relevant.
  • The question to resolve, therefore, was whether it was enough that the child would be temporarily deprived of the genuine enjoyment of her rights as a citizen of the Union in a theoretical sense
  • The Upper Tribunal accepted that they were aware this question had not been considered in any European or UK cases. However it was noted that, in Patel, the Supreme Court, after considering the CJEU’s Zambrano jurisprudence, concluded that the test of compulsion is “a practical test to be applied to the actual facts and not to a theoretical set of facts”.
  • Given that the assessment of whether a child will be compelled to leave the Union for the purposes of Article 20 TFEU must be based on the actual facts (rather than any hypothetical or theoretical scenarios), it follows that the assessment of whether a child, as a result of being compelled to leave the territory of the European Union, will  be deprived of his or her genuine enjoyment of the rights conferred by Article 20 TFEU in accordance with Zambrano falls to be assessed by considering the actual facts (including how long a child is likely to be outside the territory of the Union), rather than theoretical possibilities.

The Upper Tribunal concluded that it was not contrary to the principle in Zambrano for the appellant’s daughter to be compelled to leave the UK with the appellant because she and the appellant would re-enter the UK several months later and any loss of enjoyment of the substance of her Union citizenship rights (which will be limited to that temporary period) will only be theoretical.

( E). 276ADE(1)(vi) – very significant obstacles to integration to life in Pakistan

It was argued on behalf of Younas that her removal would be disproportionate because she met the requirements of the Immigration Rules of Paragraph 276ADE(1)(vi). It was put forward that as the appellant had never lived, and had no family or accommodation, in Pakistan, there would be very significant obstacles to her integration in Pakistan.

Due to her background and family connections in Pakistan, the Appellant would be an “ insider” in Pakistan:

The Upper Tribunal rejected the appellants claim for the following reasons:

  • at the date of  her application  the appellant would, by her own account, have been able to return to the United Arab Emirates, a country in which she had lived nearly all her life and in which she had close family. She would not face very significant obstacles integrating into the United Arab Emirates.
  • The Upper Tribunal made a reference to Kamara v SSHD [2016] EWCA Civ 813  in which Sales LJ explained that the concept of integration is a broad one: “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 by 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” .
  • Although the appellant had never lived in Pakistan and would consequently face some difficulties and challenges establishing herself in the country, she was familiar with the language, culture, religion and societal norms of Pakistan, having grown up in a Pakistani family and within the Pakistani community in Dubai. She also had maintained a connection with extended family in Pakistan. Given her background and family connections, the appellant would be an insider in Pakistan, in the sense that she would have an understanding as to how life is carried on and the ability to integrate and be accepted. The difficulties and challenges she would face integrating fell a long way short of being “very significant obstacles”.

On the facts of the appeal, there would not be very significant obstacles to integration in Pakistan whether the appellant remained there permanently or for a short period.

Conclusion

Section 117B(6)(b) simply  requires consideration whether,” it would not be reasonable to expect the child to leave the United Kingdom”. 

It is doubtful the Upper Tribunal was entitled to  further interpret that subsection as requiring  consideration of whether the British citizen child’s  departure would be temporary or indefinite.  

The same applies  in relation to Zambrano conclusions  that as  exclusion from the UK  would only be temporary, the loss of enjoyment of the substance of the British child’s Union citizenship rights would only be theoretical.

The Upper Tribunal acknowledged that the question whether it was enough that the child would be temporarily deprived of the genuine enjoyment of her rights as a citizen of the Union in a theoretical sense had not been considered in any European or UK cases.  Why not  refer such a question then?

The Upper Tribunal acknowledged when considering the reasonableness test in section 117B(6 )(b) that as per KO(Nigeria),  conduct and immigration history of the child’s parent(s) was not relevant.  The problem however was that all this adverse history and conduct had already been factored into the equation of the overall case when reaching conclusions on the Chikwamba argument. This led the Tribunal to conclude at paragraph 98 of their judgement that, 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…. 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 reasonableness and the compulsion test were satisfied on the facts of the case.

Even if  the Appellant’s claim failed under the Immigration Rules  and on the Chikwamba arguments,  since different tests applied, the Appellant could have succeeded in her appeal based on other arguments had the Upper Tribunal not gone down the road of  introducing the new further extended considerations that it did  into section 11B(6)(b) and on Zambrano issues.

Overall, having regard to the Upper Tribunal Panel’s approach to all the grounds Younas sought to rely upon,  it appears, she had no hope at all of ever succeeding in any of her claims.

Had Younas initially applied for leave to remain as a partner ( and parent) by reference to her relationship with British citizens family members after the expiry of her visitor visa, could a different outcome have ensued?

Yes, possibly, firstly because she would then be caught by the provisions of Appellant FM and secondly before a different Panel of the  Upper Tribunal, it is likely her claim could have  succeeded on at least one of the arguments she put forward.

The factual context within which the applicability of Chikwamba was considered in Younas, sours the outlook somewhat, however it is important to recall that each case is considered based on individualised circumstances.  The adverse credibility issues in Younas tainted the Upper Tribunal’s approach and inevitably impacted upon whether she was able to show that the insurmountable obstacles test was met. Her immigration history and conduct affected Question 3 Chikwamba considerations as illustrated by the Upper Tribunal at paragraph 98 of their judgement.  As Younas was found able to temporarily return to Pakistan and apply for entry clearance as a spouse,  this finding  and expectation of temporary exclusion affected and spurned on the Upper Tribunal’s approach to the section 117B(6) aspects and Zambrano, with a gloss put on the relevant tests and principles applicable to those provisions.

The basis upon which Younas’s claim foundered does not rule out continued and strengthened reliance on Chikwamba principles in other cases – regardless of the Upper Tribunal’s approach to the circumstances of her appeal.

Paposhvili approach: expanded interpretation of Article 3 by Supreme Court in Zimbabwean HIV medical condition case

Following the decision of the Supreme Court in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 (29 April 2020), it is of course now time for the Secretary of State to cease the barely concealed pretence of nearly 4years: a pretence that  the decision of the Grand Chamber of the European Court of Human Rights (“the ECtHR”) in Paposhvili v Belgium [2017] Imm AR 867 is a legal aberration.

The perfected art of standard refusal decisions that deliberately neglect to factor in the relevance and effect of Paposhvili in medical condition cases should now be a thing of the past.

The maintenance and publication of Home Office Guidance (Human rights claims on medical grounds, currently dated 20 May 2014) for Home Office decision- makers, which refuses to acknowledge the very existence of  Paposhvili, should be seen no more.

The glaring reality has always been that Paposhvili is a judgement to be reckoned with. This, the Secretary of State has been refusing to accept.

Many an appeal has been allowed by the First Tier Tribunal since Paposhvili was published( December 2016), only to be  overturned by the Upper Tribunal on appeal by the Secretary of State placing reliance on the case of “N”.

Just as much as the Secretary of State has remained smugly and fairly confident for well over a decade that the case of “N” was here to stay, so too must there be a constant reminder  of the new legal heavyweight in town.

For an appeal that has been acknowledged to raise “the most controversial questions which the law of human rights can generate”, the judgement of the Supreme Court is with a good measure of relief, welcomingly short, short enough to retain an interest sufficient enough to enable a full read of the decision.  

Rising however beyond the current legal high and to be expected all matters considered following AM(Zimbabwe), will be the usual lengthy exposition from the Upper Tribunal or nudge in from the Court of Appeal, hopefully  not with a view to watering down the practical effect of Paposhvili but with a view to bravely and permanently throwing off the remnants of all and any remaining invisible shackles that the case of “N” had bound the lower courts in for nearly two decades.

The cases of D and N – setting  of the high threshold test in Article 3 in medical condition cases

In brief, the applicant in the D v United Kingdom (1997) 24 EHRR 423 was about to die of AIDS; and the essence of the decision was not the absence of treatment on St Kitts but the inhumanity of, in effect, pulling a man off his deathbed.

N v Secretary of State for the Home Department (Terrence Higgins Trust intervening) [2005] UKHL 31, [2005] 2 AC 296, related to a claimant who had been diagnosed with HIV and Lady Hale concluded as follows in the House of Lords:

“69. In my view, therefore, the test, in this sort of case, is whether the applicant’s illness has reached such a critical stage (ie he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity.”

The appellant in the N case in the House of Lords then became the applicant in the N case in the ECtHR – N v United Kingdom (2008) 47 EHRR 39 and again she relied on article 3.

By a majority, her application was rejected. The Grand Chamber observed that, since the judgment in the D case 11 years previously, the court had never held that removal of an alien would violate the article on grounds of ill-health;  that in the D case the applicant had appeared to be close to death and that a reduction in life expectancy in the event of removal had never in itself been held to amount to a violation of article 3; that, although there might be “other very exceptional cases in which the humanitarian considerations are equally compelling”, the high threshold for violation set in the D case should be maintained; and  much as Lord Brown had suggested, that an obligation to provide free and unlimited treatment for a serious condition, if of a standard unmet in the applicant’s country of origin, would place too great a burden on contracting states.

Paposhvili and the” new criterion

Following analysis of the decision in the D case and of its own decision in the N case, the Grand Chamber in Paposhvili expressed the view in para 182 that the approach hitherto adopted should be “clarified”.  The  Grand Chamber proceeded as follows:

“183.  The Court considers that the ‘other very exceptional cases’ within the meaning of the judgment in N v The United Kingdom (para 43) which may raise an issue under article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness”.

What did AM ask the Supreme Court to do?

AM, a Zimbabwean foreign national criminal subject to deportation and living with HIV, relied on Article 3 of the Convention which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

At his appeal hearing before the Tribunal, AM relied on a report from a nurse as well as a report from a consultant physician in the same clinic who had been treating him for four years. The consultant reported that the treatment of AM with Eviplera was continuing satisfactorily and further clarified: “However, there is no cure for HIV at present. It is vital for individuals on antiretroviral therapy to be maintained on lifelong HIV treatment. Should this gentleman stop his treatment or be denied access to his treatment, his HIV viral load will rise, his CD4 count will decrease and he will be at risk of developing opportunistic infections, opportunistic cancers and premature death. It is vital for individuals living with HIV to maintain regular specialist follow up, and access to effective antiretroviral therapy.”

During his hearing before the First Tier Tribunal, reliance was placed upon a country information report referable to Zimbabwe which stated that the list of ART medications available there did not include Eviplera, which AM was taking, which had not given rise to significant side-effects and had enabled his CD4 blood count to increase and his HIV viral load to become undetectable.

AM argued if that he was deported to Zimbabwe, he would be unable to access the medication in the UK which prevents his relapse into full-blown AIDS.

AM sought an expanded interpretation of Article 3 in the context of a situation such as his own  and asked the Supreme Court to depart from the decision in N  by reference to the judgment in the Paposhvili case and to remit his application for rehearing by reference to Article 3

How did the Supreme Court approach AM’s appeal?

The Supreme Court  began by observing in reference to the  exposition at paragraph 183 of Paposhvilli  that it was hard to think that it was encompassed by the reference in the N case to “other very exceptional cases” because any application of the criterion in the quoted passage would be likely to have led to a contrary conclusion in the N case itself.

As regards addressing the words “although not at imminent risk of dying” in the first long sentence of paragraph 183 in Paposhvili, the  Supreme Court stated that the words refer to the imminent risk of death in the returning state. The Supreme Court concluded that the Grand Chamber was thereby explaining that, in cases of resistance to return by reference to ill-health, article 3 might extend to a situation other than that exemplified by  D case, in which there was an imminent risk of death in the returning state.

(a)Procedural requirements in Article 3:

Summarizing on the effect of Paposhvili, the Supreme Court in AM(Zimbabwe) stated as follows [23]:

“Its new focus on the existence and accessibility of appropriate treatment in the receiving state led the Grand Chamber in the Paposhvili case to make significant pronouncements about the procedural requirements of article 3 in that regard. It held

(a)   in para 186 that it was for applicants to adduce before the returning state evidence “capable of demonstrating that there are substantial grounds for believing” that, if removed, they would be exposed to a real risk of subjection to treatment contrary to article 3;

(b)    in para 187 that, where such evidence was adduced in support of an application under article 3, it was for the returning state to “dispel any doubts raised by it”; to subject the alleged risk to close scrutiny; and to address reports of reputable organisations about treatment in the receiving state;

(c)    in para 189 that the returning state had to “verify on a case-by-case basis” whether the care generally available in the receiving state was in practice sufficient to prevent the applicant’s exposure to treatment contrary to article 3;

(d)  in para 190 that the returning state also had to consider the accessibility of the treatment to the particular applicant, including by reference to its cost if any, to the existence of a family network and to its geographical location; and

(e)  in para 191 that if, following examination of the relevant information, serious doubts continued to surround the impact of removal, the returning state had to obtain an individual assurance from the receiving state that appropriate treatment would be available and accessible to the applicant”.

The Supreme Court noted that it was the failure of Belgium to discharge the suggested procedural obligations which precipitated the Grand Chamber’s conclusion in the Paposhvili case that deportation of the applicant to Georgia would have violated his rights under article 3. The Court observed  that it seemed that the Grand Chamber treated the doctor’s evidence as “capable of demonstrating that there [were] substantial grounds for believing” that deportation would expose him to a real risk of treatment contrary to article 3. Belgium’s procedural obligations were therefore engaged but not discharged.

(b)Criticism of the Court of Appeal’s approach in AM(Zimbabwe):

The Supreme Court noted the following  regarding  the decision of the Court of Appeal in AM (Zimbabwe) & Anor v The Secretary of State for the Home Department [2018] EWCA Civ 64:

  • the Court of Appeal’s view, that the decision in Paposhvili reflected only a “very modest” extension of the protection against return given by article 3 in cases of ill-health.
  • that the Court of Appeal fastened in para 39(iv) upon the Grand Chamber’s questionable choice of language that the previous approach to such cases needed only to be “clarified”.
  • that the Court of Appeal buttressed its restrictive view of the effect of the decision by claiming in para 39(ii) that the Grand Chamber had noted that there had been no violation of article 3 in the N case and in para 40 that the Grand Chamber had “plainly regarded that case as rightly decided”.

The Supreme Court was however at pains to point out that a careful reader of paragraphs 178 to 183 of the judgment in the Paposhvili case might find it hard to agree with the Court of Appeal in this respect. Although the Grand Chamber noted that it had been held in the N case there had been no violation of article 3, there was however no express agreement on its part with that conclusion and, subject to the precise meaning of the new criterion in para 183 of the judgment, its application to the facts of the N case would suggest a violation.

The Supreme Court further observed that the Court of Appeal interpreted the new criterion in para 183 of the judgment in the Paposhvili case, at para 38 as follows:

“This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (ie to the article 3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (ie likely ‘rapid’ experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.”

The Supreme Court concluded that there was validity as to the advanced criticism of the Court of Appeal’s interpretation of the new criterion.

In its first sentence the reference by the Grand Chamber to “a significant reduction in life expectancy” was interpreted as “death within a short time”. But then, in the second sentence, the interpretation developed into the “imminence … of … death”; and this was achieved by attributing the words “rapid … decline” to life expectancy when, as written, they apply only to “intense suffering”.  The Supreme Court concluded that the result was that in two sentences a significant reduction in life expectancy had become translated as the imminence of death and this was too much of a leap.

(c)Meaning of “significant” reduction in life expectancy in para 183 of Paposhvili:

In the Supreme Court’s view, the word “significant” in context meant substantial.

Were a reduction in life expectancy to be less than substantial, it would not attain the minimum level of severity which article 3 requires.

A reduction in life expectancy to death in the near future is more likely to be significant than any other reduction.

(d)It is for the claimant to adduce evidence “capable of demonstrating that there are substantial grounds for believing” that article 3 would be violated:

The Supreme Court emphasized the the Grand Chamber’s pronouncements in Paposhvili about the procedural requirements of article 3, could on no view be regarded as mere clarification of what the court had previously said.

Pending the giving of judgement in Savran in the Grand Chamber, the Supreme Court made the following observations regarding the procedural requirements:

  • The basic principle is that, if a claimant alleges a breach of their rights, it is for the claimant to establish it, but “Convention proceedings do not in all cases lend themselves to a rigorous application of [that] principle …”: DH v Czech Republic (2008) 47 EHRR 3, para 179.
  • It is clear that, in application to claims under article 3 to resist return by reference to ill-health, the Grand Chamber has indeed modified that principle.
  • The threshold is for the applicant to adduce evidence “capable of demonstrating that there are substantial grounds for believing” that article 3 would be violated.
  • It may make formidable intellectual demands on decision-makers who conclude that the evidence does not establish “substantial grounds” to have to proceed to consider whether nevertheless it is “capable of demonstrating” them.
  • Irrespective of the perhaps unnecessary complexity of the test, it must not be imagined that it represents an undemanding threshold for an applicant to cross.
  • The requisite capacity of the evidence adduced by the applicant is to demonstrate “substantial” grounds for believing that it is a “very exceptional” case because of a “real” risk of subjection to “inhuman” treatment.
  • Sales LJ was correct in the Court of Appeal in para 16, to describe the threshold as an obligation on an applicant to raise a “prima facie case” of potential infringement of article 3. This means a case which, if not challenged or countered, would establish the infringement: see para 112 of a useful analysis in the Determination of the President of the Upper Tribunal and two of its senior judges in AXB v Secretary of State for the Home Department [2019] UKUT 397 (IAC).
  • The arrangements in the UK are such that the decision whether the applicant has adduced evidence to the requisite standard and, if so, whether it has been successfully countered fall to be taken initially by the Secretary of State and, in the event of an appeal, again by the First-tier Tribunal

(e)Challenge or counter by the Secretary of State to the adduced evidence:

The Supreme Court proceeded to state as follows:

In the event that the applicant presents evidence to the standard addressed above, the returning state can seek to challenge or counter it in the manner helpfully outlined in the judgment in the Paposhvili case at paras 187 to 191 and summarised at para 23(b) to (e) above by the Supreme Court in AM(Zimbabwe).

The premise behind the guidance is that, while it is for the applicant to adduce evidence about his or her medical condition, current treatment (including the likely suitability of any other treatment) and the effect on him or her of inability to access it, the returning state is better able to collect evidence about the availability and accessibility of suitable treatment in the receiving state.

Paragraph 187 of Paposhvili provides that, where such evidence is adduced in support of an application under article 3, it  is for the returning state to “dispel any doubts raised by it”; to subject the alleged risk to close scrutiny; and to address reports of reputable organisations about treatment in the receiving state- the Supreme Court noted that “any” doubts in paragraph 187 of Paposhvili means any serious doubts – for proof, or in this case disproof, beyond all doubt is a concept rightly unknown to the Convention.

(f)Departure from the case of “N”- adoption of wider interpretation in Article 3:

The Supreme Court in AM(Zimbabwe) expressly departs from N at paragraph 34 of its judgement:

“This court is not actively invited to decline to adopt the exposition of the effect of article 3 in relation to claims to resist return by reference to ill-health which the Grand Chamber conducted in the Paposhvili case. Although the Secretary of State commends the Court of Appeal’s unduly narrow interpretation of the Grand Chamber’s exposition, she makes no active submission that, in the event of a wider interpretation, we should decline to adopt it. Our refusal to follow a decision of the ECtHR, particularly of its Grand Chamber, is no longer regarded as, in effect, always inappropriate. But it remains, for well-rehearsed reasons, inappropriate save in highly unusual circumstances such as were considered in R (Hallam) and R (Nealon) v Secretary of State for Justice (JUSTICE intervening) [2019] UKSC 2, [2020] AC 279. In any event, however, there is no question of our refusing to follow the decision in the Paposhvili case. For it was 15 years ago, in the N case cited at para 2 above, that the House of Lords expressed concern that the restriction of article 3 to early death only when in prospect in the returning state appeared illogical: see para 17 above. In the light of the decision in the Paposhvili case, it is from the decision of the House of Lords in the N case that we should today depart”.

(g)Remittal of the appeal to the Upper Tribunal for up-to-date evidence properly directed to the Grand Chamber’s substantive and procedural requirements:

The Supreme Court noted that from the evidence submitted by the appellant to the First-tier Tribunal in support of his claim under article 8, the Secretary of State extracted the two medical reports  provided and she contended that they failed to cross the threshold required to be crossed by applicants pursuant to para 186 of the decision in  Paposhvili. In the light of its erroneous opinion that the decision in the Paposhvili case required evidence of a real risk that either intense suffering or death would be imminent in the receiving state, it was therefore not difficult for the Court of Appeal to conclude, that the two medical reports were insufficient to cross that threshold.

The Supreme Court proceeded to state that apart from the fact that the Court of Appeal’s conclusion about the insufficiency of the reports was flawed, it was inappropriate to extract the medical reports from the other evidence submitted in furtherance of the claim under article 8 and to ask whether they crossed the threshold now required of an applicant under article 3 pursuant to the decision in the Paposhvili case.

It was noted that the reports did not address that requirement, which did not exist when they were written as they were both written more than five years ago.

In the Court’s view, they could not address the argument presented to it by the appellant, and strongly disputed by the Secretary of State, namely that, upon application of the Supreme Court’s wider interpretation of the Grand Chamber’s decision, the reports sufficed to cross the requisite threshold.

The proper course was to allow the appeal and to remit the appellant’s proposed claim under article 3 to be heard, on up-to-date evidence properly directed to the Grand Chamber’s substantive and procedural requirements, by the Upper Tribunal.

What next?

A reported decision of either the Upper Tribunal or Court of Appeal will soon “ breakdown” what they believe the Supreme Court really meant when it departed from “N”.

The Secretary of State will in turn, at some point of her choosing, also set out in published Guidance what she believes the Supreme Court was driving at.

The decision of the Supreme Court is fairly short however an unenviable task of some magnitude has been left to the lower courts. There is an expectation that the lower court do what the Supreme Court felt unable to do, ie complete an application of the Supreme Court’s  wider interpretation of Paposhvili, following consideration of up -to- date evidence and reports directed to the Grand Chamber’s substantive and procedural requirements and to ask whether that evidence crosses the threshold now required of an applicant under article 3 pursuant to the decision in the Paposhvili case.

The issues will not be readily resolved easily nor neatly.  Just as the area of deportation since 2012 has been a rife area of a game of ping-pong between the Upper Tribunal and Court of Appeal, so too can  it be expected that quite a bit of litigation will arise in this area and dominate the legal scenario for some time to come.

Meanwhile, for claimants as a matter of advancement of claims, its full steam ahead.

Following the Supreme Court decision and its departure from “N”,  as per the rallying conclusion in a previous blog post of nearly 3years ago, Paposhvili and HIV/AIDS: First Tier Tribunal Judge allows Article 3 medical condition appeal by a Malawian claimant: “From the above, it is therefore possible  for an Appellant to advance an Article 3 medical condition appeal  placing reliance upon Paposhvili and succeed. Whilst the First Tier Tribunal considers matters on the same ground( medical conditions cases)  applying the Paposhvili approach, surely  the Home Office  cannot continue much longer  doing so from another angle ie the “N” approach”.

Coronavirus: The UK Government should afford the undocumented sufficient dignity in matters of life and death by regularising their status

  1. The Problem
  2. Leave to remain outside the Rules v Appendix FM and Paragraph 276ADE(1) applications
  3. Power of the Secretary of State to grant leave to remain outside the Rules
  4. Reasons for application
  5. Leave to remain outside the Rules- application process
  6. What the Home Office should do- problems with the current application process
  7. Duration of grant of leave to remain outside the Rules
  8. Conditions of grant of leave outside the Rules- No recourse to public funds
  9. No recourse to public funds- the way round this relying on the Discretionary Leave Policy
  10. Grant of leave to remain under the Discretionary Leave Policy
  11. Refusal or mere deferral on basis that circumstances are short lived
  12. Refusal and right of appeal
  13. Leave to remain- Article 3 medical condition cases
  14. Carers concession
  15. Applying to lift the no recourse to public funds condition

(1)THE PROBLEM

There are reports that a million undocumented migrants could go hungry because of the coronavirus pandemic – https://www.theguardian.com/world/2020/mar/23/million-undocumented-migrants-could-go-hungry-say-charities:

  • Approximately a million undocumented migrants living under the radar in the UK could be at risk not only of contracting Covid-19 but also of starvation because of the crisis created by the pandemic, charities have warned.
  • A report published in November 2019 by the Pew Research Center, a Washington thinktank, estimates that there could be between 800,000 and 1.2 million of these migrants currently in the UK.
  • Asylum seekers with an active claim receive meagre support from the Home Office – £37.75 per week – to buy food and other essentials and no-choice accommodation. However, the vast majority of those whose cases have been refused receive no support at all.
  • They are not allowed to work and survive thanks to a network of charities who provide survival packages of cooked meals at day centres, food parcels, secondhand clothing and supermarket vouchers. However, these charities have closed their day centres because of the pandemic.
  • Haringey Migrant Support Service has created an emergency fund for its homeless and destitute migrant visitors who they were previously supporting with food bank vouchers, food parcels and clothes. They were also providing lunch at their drop-in centres, which are not currently operating during the pandemic.
  • It is unclear whether an initiative due to be announced on Monday to house homeless people in empty hotels will include destitute migrants or only British street homeless people. The latter have access to housing and other benefits, the former do not”.

The UK government has the ability to regularise the immigration status of those in the UK without leave to remain, yet despite the pandemic and its devastating effects, the government remains silent, inactive on this particular issue.

Yes, suspending the eviction of failed claimants from asylum supported accommodation sounds like a whole lot of positive action but it actually isn’t.  It’s merely keeping the status quo. Where else were these people supposed to go? They are currently irremovable.

These are not concessions to the undocumented but something that should and would have been demanded by those representing those rendered vulnerable due to current circumstances.

As a practical matter, it was expected there would come a point when UKVI Liverpool would stop taking Further Submissions provided in person.  Until a few years ago, further submissions were sent by post to the Home Office. The government should not be applauded for instituting lodgement of submissions via a designated email address- they were bound to take a step back on in-person submissions, sooner rather than later. Where the government subsequently seeks once again to unnecessarily tighten up the procedure and revert to the position prior to 18 March 2020, there should be demands for justification of such action.

The current position includes extensions of visas to 31 May 2020 where leave expires between 24 January 2020 and 31 May 2020, if a person cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19).

For those that are applying to stay in the UK , current Home Office guidance states, “During these unique circumstances you’ll be able to apply from the UK to switch to a long-term UK visa until 31 May. This includes applications where you would usually need to apply for a visa from your home country. You’ll need to meet the same visa requirements and pay the UK application fee. This includes those whose leave has already been automatically extended to 31 March 2020”.

The Government needs to go further.  Leaving the undocumented in limbo, unregularized and unable to access essential services, fails to recognise that in current circumstances the undocumented are human, human enough to be treated equally as British citizen themselves in matters of life and death.

Those wishing to regularise their immigration status should not wait endlessly but seek to submit leave applications relying on their circumstances and requesting that leave be granted.

(2)LEAVE TO REMAIN OUTSIDE THE RULES  v  APPENDIX FM AND PARAGRAPH 276ADE(1) APPLICATIONS

There is a difference between applications placing reliance upon the Immigration Rules and those, forming the basis of discussion, which place reliance on exceptional compelling and compassionate circumstances/factors outside the Rules.

From 1 April 2003 to 9 July 2012, the majority of applications which fell outside the Immigration Rules in the UK were considered within the discretionary leave criteria, which (along with humanitarian protection) replaced exceptional leave to enter or remain. This included cases on family, private life, medical and other European Convention on Human Rights (ECHR) grounds.

On 9 July 2012 and 10 August 2017, legislation was changed to bring the majority of family and private life cases under part 7 paragraph 276ADE(1) and Appendix FM of the Immigration Rules.

In all family and private life cases, the Home office will consider whether the Immigration Rules are otherwise met and if not, will go on to consider whether 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. Each application is considered on its merits and on a case-by-case basis taking into account the individual circumstances.

(3)POWER OF THE SECRETARY OF STATE TO GRANT LEAVE TO REMAIN OUTSIDE THE RULES

The Secretary of State has the power to grant leave on a discretionary basis outside the Immigration Rules from the residual discretion under the Immigration Act 1971.

An application for leave to remain outside the Rules  can be granted on compelling compassionate grounds where the Home Office decides that the specific circumstances of the case includes exceptional circumstances. These circumstances will mean that a refusal would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of ECHR Article 8, Article 3, refugee convention or other obligations.

It is arguable that the Secretary of State’s own Policy Guidance was formulated to cater for current circumstances, ie Leave outside the Immigration Rules, Version 1.0, 27 February 2018.

Although the Leave to Remain Outside the Rules( LOTR) Guidance states:

“A grant of LOTR should be rare. Discretion should be used sparingly….”

there are other parts of the Guidance upon which reliance can be placed:

“Reasons to grant LOTR

Compelling compassionate factors are, broadly speaking, exceptional circumstances which mean that a refusal of entry clearance or leave to remain would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of ECHR Article 8, refugee convention or obligations. An example might be where an applicant or relevant family member has experienced personal tragedy and there is a specific event to take place or action to be taken in the UK as a result, but which does not in itself render refusal an ECHR breach.

Where the Immigration Rules are not met, and where there are no exceptional circumstances that warrant a grant of leave under Article 8, Article 3 medical or discretionary leave policies, there may be other factors that when taken into account along with the compelling compassionate grounds raised in an individual case, warrant a grant of LOTR. Factors, in the UK or overseas, can be raised in a LOTR application. The decision maker must consider whether the application raises compelling compassionate factors which mean that the Home Office should grant LOTR. Such factors may include:

• emergency or unexpected events

• a crisis, disaster or accident that could not have been anticipated

LOTR will not be granted where it is considered reasonable to expect the applicant to leave the UK despite such factors. Factors, in the UK or overseas, can be raised in a LOTR application. These factors can arise in any application type”.

The coronavirus is a crisis, a disaster that could not have been anticipated. How the current circumstances and the effects flowing from the pandemic may potentially affect the country conditions in the country of return justifying a leave application, is dealt with below.

(4)REASONS FOR APPLICATION

Any compelling compassionate factors that an applicant wishes to be considered, including documentary evidence and the period of leave required or requested would need to be raised within an application.

A basis of application as clarified above and also set out further below could place reliance on the following:

  • Exceptional circumstances outside the Rules – a refusal of leaveto remain would result in unjustifiably harsh consequences for the applicant or their family
  • Article 8 of the ECHR within the Rules- although the applicant 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( due to conditions in the country of return)
  • Article 3 medical condition grounds
  • Carers Concession Policy

(5)LEAVE TO REMAIN OUTSIDE THE RULES- APPLICATION PROCESS

If an applicant in the UK wishes to be considered solely outside the Immigration Rules, they should apply using the further leave (human rights other) (FLR (HRO) application form or further leave (Immigration Rules) (FLR(IR) form.

Applicants should indicate that they are applying for other purposes not covered by other application forms and should provide details, including any relevant documentary evidence explaining in more detail why they are seeking leave to remain on compelling compassionate grounds.

Where the applicant is not subject to a fee exemption, they must pay the relevant application fees and charges.

If an applicant in the UK wishes to be considered for a grant of indefinite leave to remain (ILR) outside the Immigration Rules, they should apply on form SET(O).

(6)WHAT THE HOME OFFICE SHOULD DO- PROBLEMS WITH THE CURRENT APPLICATION PROCESS

UK Visa and Citizenship Application Centres (UKVCAS), Post Office enrolment services and Service and Support Centres (SSCs) are temporarily closed because of coronavirus (COVID-19). Applicants cannot book an appointment.

The Home Office should set up a new simplified  procedure to enable submission of an application/request for leave to remain outside the Rules via a designated email address  through which  submission of  representations and supportive documentation can also be done.

Some applicants are unable to make provision of the required Home office application fee (£1033.00 per applicant) and NHS Health Surcharge( £1000 per applicant).

The online application procedure, beginning from the on-line fee waiver application process to actual submission of the online substantive application form appears redundant currently,  not fit for purpose.

The fee waiver application process requires supportive documentation to be sent to a designated Home Office postal address, with a decision made usually within 3 to 6weeks. That’s too long a process where individuals require urgent decisions on applications made.

Even with online submission of a form, currently there are no appointments to be obtained to enable the application process to progress.

The Home Office should  urgently be providing a  designated email address so that consideration of applications can be made and decisions notified. 

(7)DURATION OF GRANT OF LEAVE TO REMAIN OUTSIDE THE RULES

The Secretary of State’s Policy is that the  period of  grant of leave to remain outside the rules should be of a duration that is suitable to accommodate or overcome the compassionate compelling grounds raised and no more than necessary based on the individual facts of a case.

The Home Office position is that most successful applicants would require leave for a specific, often short, one-off period.

Indefinite leave to enter or remain can be granted outside the rules where the grounds are so exceptional that they warrant it. Such cases are stated as likely to be extremely rare. The length of leave will depend on the circumstances of the case.

Applicants who are granted leave to remain outside the Rules are not considered to be on a route to settlement (indefinite leave to remain) unless leave is granted in a specific concessionary route to settlement.

(8)CONDITIONS OF GRANT OF LEAVE OUTSIDE THE RULES – NO RECOURSE TO PUBLIC FUNDS

Home Office Guidance, Leave outside the Immigration Rules, Version 1.0, 27 February 2018 provides  that where leave is granted outside the Rules:

“Conditions for limited leave should be no recourse to public funds, no work and no study. Any deviation from this should be rare and only where there is sufficient evidence to show why such conditions should not be applied”.

(9)NO RECOURSE TO PUBLIC FUNDS- THE WAY ROUND THIS RELYING ON  THE DISCRETIONARY LEAVE POLICY

The Secretary of State’s Policy Guidance Discretionary leave, provides relevantly:

“1.2 Background

………………

……..The circumstances in which someone may be granted leave for exceptional (non-family or private life) reasons are covered either by the policy on Leave outside the Rules (LOTR) for non-Article 8 reasons or this DL instruction.

………………………

3.1 Key principles

Discretionary Leave (DL) must not be granted where an individual qualifies for leave under the Immigration Rules or for Leave outside the Rules (LOTR) for Article 8 reasons. It only applies to those who provide evidence of exceptional compassionate circumstances or there are other compelling reasons to grant leave on a discretionary basis”.

Applicants should  apply for leave and  specifically request a grant of Discretionary  Leave to Remain. This is most relevant as the conditions under which leave is granted are more favourable, allowing recourse to public funds:

“Section 4: Granting or refusing leave

……………

4.3 Recourse to public funds, work and study

Those granted DL have recourse to public funds and no prohibition on work. They are also able to enter higher education. However, those on limited leave are not eligible for higher education student finance under existing Department of Business, Innovation and Skills regulations. In addition, a study condition applies to all adult temporary migrants granted DL which prohibits studies in particular subjects without first obtaining an Academic Technology Approval Scheme (ATAS) clearance certificate from the Counter-Proliferation Department of the Foreign and Commonwealth Office (FCO). Those granted DL who are aged 18 or will turn 18 before their limited leave expires will, in addition to any other conditions which may apply, be granted leave subject to the requirements set out Part 15 in the Immigration Rules”.

(10)GRANT OF LEAVE TO REMAIN UNDER THE DISCRETIONARY LEAVE POLICY

Where Discretionary Leave  is granted, Home Office Policy Guidance states that the duration of leave must be determined by considering the individual facts of the case but leave should not normally be granted for more than 30 months (2 and a half years) at a time.

When a person is granted an initial period of discretionary leave, this does not necessarily mean they will be entitled to further leave or to settlement. Subsequent periods of leave may be granted providing the applicant continues to meet the relevant criteria set out in the published policy on Discretionary leave applicable at the time of the decision.

From 9 July 2012, those granted Discretionary Leave must normally have completed a continuous period of at least 120 months’ limited leave (i.e. a total of 10 years, normally consisting of 4 separate 2 and a half year periods of leave) before being eligible to apply for settlement.

Separate arrangements exist for those granted an initial period of 3 years’ Discretionary Leave prior to 9 July 2012.

(11)REFUSAL OR MERE DEFERRAL ON BASIS THAT CIRCUMSTANCES ARE SHORT LIVED

Both Guidance,  Discretionary leave  and  Leave outside the Immigration Rules, contemplate factors  being raised which may  be sufficiently short lived,  such that it might be proportionate to refuse the application or claim  and give an undertaking not to remove the individual or expect them to leave the UK voluntarily until the circumstances have changed.

Where it is considered that the person can leave the UK within a short time of the date of decision, Home Office Guidance states that it will normally be appropriate to refuse the application or claim outright, not grant a period of leave to remain outside the Rules and defer removal until such time as it is possible.

It is however not known how long the pandemic or lockdown will last.

“Britain has been braced to expect a partial lockdown of society “for six months or longer”, following another sharp rise in the number of coronavirus deaths. Only “some” of the harsh restrictions will be lifted in the weeks to come, the deputy chief medical officer warned – even if a review after Easter judged they are working .  “Three weeks for review, two or three months to see if we’ve really squashed it,” Dr Jenny Harries told a Downing Street press conference.Download the new Independent Premium appSharing the full story, not just the headlinesDownload now  “But three to six months, ideally – but lots of uncertainty in that – to see at which point we can actually get back to normal. And it is plausible it could go further than that.”- https://www.independent.co.uk/news/uk/politics/coronavirus-uk-lockdown-end-latest-boris-johnson-a9432666.html

An applicant should provide make submissions on why a non-standard grant of less than 30 months is inapplicable. It should be explained why the circumstances of the case are not just unusual but can be distinguished to a high degree from other cases to the extent of justifying periods of leave of at least 30 months or more.

(12)REFUSAL AND RIGHT OF APPEAL

Guidance, Leave outside the Immigration Rules, states that where a human rights claim has not been decided as part of the consideration, applicants who apply for a grant of leave outside the Immigration Rules and are refused will not have a right of appeal against the decision or an administrative review of the decision.

An applicant should accompany the application with  detailed arguments  also focused on private and family life grounds or Article 3 of the ECHR, where appropriate.

For those with children who cannot yet be considered qualifying children for the purposes of the Rules,( ie British children or children under 18years with 7years continuous residence in the UK) reliance can be placed on Guidance, Leave outside the Immigration Rules  and Discretionary leave which state:

In respect of children and those with children

The application of this guidance must take into account the circumstances of each case and the impact on children, or on those with children, in the UK. Section 55 of the Borders, Citizenship and Immigration Act 2009 places an obligation on the Secretary of State to take account of the need to safeguard and promote the welfare of children in the UK when carrying out immigration, asylum and nationality functions.

In practice, this requires a consideration to be made of the best interests of the child in every decision that has an impact on that child. This is particularly important where the decision may result in the child having to leave the UK, where there are obvious factors that adversely affect the child, or where a parent caring for the child asks us to take particular circumstances into account. All decisions must demonstrate that the child’s best interests have been considered as a primary, but not necessarily the only, consideration”.

Article 8 considerations can therefore be raised in relation to non-qualifying children, setting out reasons why their removal from the UK would be disproportionate.

For those who have been in the UK for less than 20 years, reference may be made to Paragraph 276ADE(1)(vi) of the Rules that 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.

Home Office Policy Guidance, Family life (as a partner or parent), private life and exceptional circumstances, Version 5.0, 10 December 2019, provides:

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

………………

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…..”

Where the conditions in the country of return are such that  at the point of return, there are continuing significant effects of the virus outbreak, then that may be put forward  as a factor indicating very significant obstacles to reintegration in the country of return.

(13)LEAVE TO REMAIN – ARTICLE 3 MEDICAL CONDITION CASES

Article 3 of the ECHR deals with inhuman or degrading treatment. An applicant relying on article 3 needs to show there are substantial grounds to believe there is a significant risk of such treatment (to a reasonable degree of likelihood) if they were returned to their country of origin.

Article 8 of the ECHR deals with respect for private life, including a person’s moral and physical integrity. The consequences to an applicant’s health of removing them from the UK could, in principle, engage article 8, however, such cases are considered by the Home Office  to be rare and that in most cases, it is unlikely article 8 will add anything decisive to a claim under article 3 when the same facts are relied on.

The Home Office position is also that there is no provision within the Immigration Rules for a person to remain in the UK to access, or to continue to access, medical treatment on the National Health Service (NHS). Such claims usually rely on article 3 and/or article 8 of the European Convention on Human Rights (ECHR).

The threshold set by Article 3 is very high

In summary, the Home Office position is that as regards Article 3 human rights claims on medical grounds, all cases have to meet the ‘N’ threshold:

The applicant is gravely ill (at a critical stage of a terminal illness and is close to death) and removing them from the UK would:

  • deprive them of the treatment they are currently receiving, and
  • sending them home to an early death in circumstances which would constitute a breach of article 3 of the European Convention of Human Rights (ECHR).

The Guidance  on Discretionary leave, provides:

“3.2 Medical cases

………

In most circumstances, a person cannot rely on Article 3 to avoid return on the basis that they require medical assistance in the UK. The improvement or stabilisation in a person’s medical condition resulting from treatment in the UK and the prospect of serious or fatal relapse on expulsion (ie deportation or removal from, or a requirement to leave, the UK) will not in themselves render expulsion inhuman treatment contrary to Article 3.

The threshold set by Article 3 is very high. To meet the threshold, a person will need to show that there are exceptional circumstances in their case which militate against return. Taken together, the relevant case law of D v United Kingdom [1997] 25 EHRR 423 and N v SSHD [2005] UKHL31 suggests that exceptional circumstances will arise when a person is in the final stages of a terminal illness, without the prospect of medical care or the support of family or friends or palliative care (ie relief of the pain, symptoms and stress caused by a serious illness and the approach of death) on return. The House of Lords’ decision in N was upheld by the European Court of Human Rights in N v UK (2008) 47 EHRR 39, and recently affirmed by the Court of Appeal in GS (India) & Ors v The Secretary of State for the Home Department [2015] EWCA Civ 40, in which Lord Justice Laws confirmed the very high threshold, stating that the case-law suggested that the ‘exceptional’ class of case is ‘confined to deathbed cases’ (paragraph 66).

The test established by N and D requires that caseworkers must make an assessment of whether the person’s illness has reached such a critical stage (ie is a terminal illness and the person is close to death) that it would amount to inhuman treatment to deprive them of the care which they are currently receiving and send them home unless there is care available there to enable them to live their final days with dignity. Of particular relevance to this assessment will be whether:

• the person is critically ill at the point of decision

• there is any treatment available in the country of return (including palliative care)

• the person will be able to access such treatment as is available (although the fact that they are unlikely to be able to do so is not determinative)

• the person will have the support of family or friends on return

Exceptional circumstances might in principle arise in other contexts, but the Courts have made clear that the threshold is very high. If the person’s condition or situation does not meet the Article 3 threshold, removal will not breach Article 3”.

Application procedure- medical condition cases:

Article 3 applications are non-charged, with the result  that no Home Office application fee or NHS Health surcharge is required to be submitted with the application, however where completing Form  (FLR (HRO) on line, a fee waiver application should first have been applied for and granted.

Home Office Guidance, Human rights claims on medical grounds, version 6.0 Valid from 20 May 2014,  provides:

“Applications by letter

You should normally reject applications made by letter as invalid and send the applicant the appropriate application form. However, you can accept the application as valid if the letter is submitted with acceptable medical evidence which:

· confirms the claimant is gravely ill, and

· has only weeks to live (despite ongoing treatment in the UK)

………………

Charging: article 3 and article 8 ‘mixed applications’

Where an applicant also cites other articles of the European Convention of Human Rights (ECHR) as a reason of claim (including article 8), you will need to decide if the article 3 claim constitutes a genuine reason of claim, or if it is cited only to prevent the applicant from paying a fee.

Provided article 3 is a genuine basis for a claim, then the whole application (including consideration of any of the other elements of the claim) will be uncharged. This does not mean the article 3 claim must be one which will succeed. However, you must think it has a realistic prospect of success.

If you are concerned the article 3 claim was included only so the applicant did not have to pay a fee you must discuss this with your senior caseworker and get policy advice, see link on right: Administrative operational policy.

In these circumstances only, it may be appropriate to refuse the article 3 claim, and request that the applicant make a further (charged) application for any other reasons”.

“Genuine” Article 3 medical condition cases may therefore by submitted by letter without going via the online application route.

As noted above, in current circumstances, the Home Office should be providing a designated email address to enable submission  and prompt decision making.

The applicant should provide accurate and up-to-date medical evidence in support of their application. The focus of the evidence they provide must be on their current state of health. A medical report must be submitted and written and signed by a qualified health professional who must have seen the claimant in person. For this purpose, the definition of a qualified health professional is a Consultant working in the NHS in the relevant specialist subject. This person must be registered with the General Medical Council. The medical report must be printed on letter-headed paper showing the address and contact details of the hospital or National Health Service (NHS) trust and the name, telephone number and fax number of the Consultant.

Grant of leave- medical condition cases

If an application is successful, Discretionary leave is granted outside of the Immigration Rules.

Guidance, Human rights claims on medical grounds, version 6.0 Valid from 20 May 2014, states as follows as regards grant of leave where an Article 3 medical condition case is successful:

“You may grant discretionary leave up to a maximum of 30 months (2.5 years). However, the leave must not exceed:

· 30 months (2.5 years), and

· life expectancy by more than three months.

You can grant leave in line with the length of treatment if it is appropriate”.

Case of Paposhvili relaxes the test for violation of Article 3 medical condition cases only to a very modest extent

The Court of Appeal in AM (Zimbabwe) & Anor v The Secretary of State for the Home Department [2018] EWCA Civ 64, considered  two appeals which concerned  the question of the operation of Article 3 of the European Convention on Human Rights, applied as a Convention right in domestic law under the Human Rights Act 1998, in relation to removal of foreign nationals from the UK where they were suffering from serious illnesses( HIV and cancer).

The Court noted that  position in domestic law was authoritatively settled in N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296. The approach laid down by the House of Lords in that case was endorsed by the Grand Chamber of the European Court of Human Rights (“ECtHR”) in N v United Kingdom (2008) 47 EHRR 39.

A question arose in AM(Zimbabwe) whether the test for application of Article 3 in this context should now be adjusted in light of the further Grand Chamber judgment in Paposhvili v Belgium, judgment of 13 December 2016; [2017] Imm AR 867.  

The Grand Chamber in Paposhvili set out the general principles governing cases of this kind at paragraphs 172 to 193.  The Paposhvili test is set out at paragraph 183 of the judgement:

“183. The Court considers that the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness”.

In AM(Zimbabwe) the Court of Appellant considered the effect of the judgment in Paposhvili and concluded:

“37. I turn, therefore, to consider the extent of the change in the law applicable under the Convention which is produced by the judgment in Paposhvili, as compared with the judgments in D v United Kingdom and N v United Kingdom. In my view, it is clear both that para. [183] of Paposhvili, set out above, relaxes the test for violation of Article 3 in the case of removal of a foreign national with a medical condition and also that it does so only to a very modest extent.

38. So far as the ECtHR and the Convention are concerned, the protection of Article 3 against removal in medical cases is now not confined to deathbed cases where death is already imminent when the applicant is in the removing country. It extends to cases where “substantial grounds have been shown for believing that [the applicant], although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy” (para. [183]). This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (i.e. to the Article 3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of Article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely “rapid” experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.

39.There are a number of powerful indicators, including in the Grand Chamber’s judgment itself, which support this interpretation of para. [183] and the inference that the Grand Chamber only intended to make a very modest extension of the protection under Article 3 in medical cases:

i) Article 3 is an unqualified right with a high threshold for its application (see N v United Kingdom, para. [43], and also Paposhvili, para. [174]);

……………..

iv) the Grand Chamber in Paposhvili seeks only to “clarify” the approach set out in N v United Kingdom (see para. [182]), not to effect any major change to what had been authoritatively laid down in that case; and

v) the Grand Chamber at para. [183] in Paposhvili, as well as using the rubric “other very exceptional cases”, which itself indicates how rarely the test in Article 3 will be found to be satisfied in medical cases, emphasised in the final sentence that it was still intending to indicate that there was “a high threshold for the application of Article 3” in medical cases. This echoes the point made by the Grand Chamber in para. [43] of N v United Kingdom, set out above, about the high threshold for application of Article 3”.

AM  was considered by the Court  to have failed to satisfy the test in paragraph 183 of Paposhvili because he has failed to show that there were  substantial grounds to believe he faced a real risk of a serious and rapid decline in his health resulting either in intense suffering (to the Article 3 standard) or death in the near future if he was removed to Zimbabwe. He was HIV positive, but did not yet have AIDS. He had adduced no medical report which stated that he was likely to die soon if removed to Zimbabwe, even if he received no treatment at all; or that he could not tolerate, without side-effects, any of the range of ARV treatments available in Zimbabwe; or that, if the only ARV treatments available to him in Zimbabwe are ones which would produce side-effects, those side-effects would be so severe as the cost of keeping him alive that they would constitute suffering at an intensity to bring his case within Article 3 according to the high threshold which applies in that regard. It was considered by the Court of Appeal that AM’s case was not even as strong as that of the applicant with AIDS in N v United Kingdom, which the Grand Chamber in Paposhvili had affirmed was correctly decided.

AM appealed to the  Supreme Court where that Court was asked to consider whether to return him to Zimbabwe would violate his right under Article 3 of the European Convention on Human Rights not to be subjected to inhuman treatment by reason of his medical condition, in light of the decision of the European Court of Human Rights in Paposhvili v Belgium [2017] Imm AR 867.

AM(Zimbabwe) was heard in the Supreme Court on 4 and December 2019 and a decision is expected within some weeks or months.

Paposhvilli test and Coronavirus

The Court of Appeal in AM(Zimbabwe) considered that AM could not satisfy the test in paragraph 183 of Paposhvili as set out above.

As of 9am on 30 March 2020, a total of 134,946 people had been tested  in the UK, of which 112,805 were confirmed negative and 22,141 were confirmed positive.

As of 5pm on 29 March 2020, 1,408 patients in the UK who tested positive for coronavirus (COVID-19) had died.

The World Health Organization provides daily Coronavirus disease (COVID-2019) Situation Reports for each Country- https://www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports

The issue is whether an applicant would be able to place reliance on  the  “N” test or the Paposhvilli test if to be returned to their country of origin. The circumstances that were before the Supreme Court in December 2019 as per AM’s case are not those prevailing currently- they are much worse and potentially affect a multitude of people subject to removal.

The pandemic shows why relaxation of the test in N  is required  if reliance on Article 3 is not to be rendered illusory.

In the event that the UK may in a few weeks or coming near months be in a position to effect removals, the conditions a person(whether diagnosed with the virus or not) would  likely meet if removed to the country of return are of significant concern.

Although the Home Office might point to the risk of exposure currently existing also in the UK, if however removals are not to be effected for some months, then the more reason to grant the undocumented leave to remain outside the Rules so as to access vital services.

The continued spread, severity, spectrum of disease, impact on the community in relation to the virus outbreak will vary country by country.

An application  for leave to remain on Article 3 grounds should provide the most up  to date figures on how far  the virus has spread  across the country of return, the number of deaths arising  from the virus, the numbers tested and diagnosed as having the virus, the number of those not tested but estimated to have the virus, the country of return’s response to the  pandemic and the state  of its  health care system in response to  the virus, etc.  As per Paposhvilli principles, these consideration bring to the fore the following relevant paragraphs from that judgement:

“188. As the Court has observed above (see paragraph 173), what is in issue here is the negative obligation not to expose persons to a risk of ill-treatment proscribed by Article 3. It follows that the impact of removal on the person concerned must be assessed by comparing his or her state of health prior to removal and how it would evolve after transfer to the receiving State.

189. As regards the factors to be taken into consideration, the authorities in the returning State must verify on a case-by-case basis whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3 (see paragraph 183 above). The benchmark is not the level of care existing in the returning State; it is not a question of ascertaining whether the care in the receiving State would be equivalent or inferior to that provided by the health-care system in the returning State. Nor is it possible to derive from Article 3 a right to receive specific treatment in the receiving State which is not available to the rest of the population.

190. The authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State. The Court observes in that regard that it has previously questioned the accessibility of care (see Aswat, cited above, § 55, and Tatar, cited above, §§ 47-49) and referred to the need to consider the cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care (see Karagoz v. France (dec.), no. 47531/99, 15 November 2001; N. v. the United Kingdom, cited above, §§ 34-41, and the references cited therein; and E.O. v. Italy (dec.), cited above).

191. Where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned – on account of the general situation in the receiving country and/or their individual situation – the returning State must obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3 (on the subject of individual assurances, see Tarakhel, cited above, § 120).

192. The Court emphasises that, in cases concerning the removal of seriously ill persons, the event which triggers the inhuman and degrading treatment, and which engages the responsibility of the returning State under Article 3, is not the lack of medical infrastructure in the receiving State. Likewise, the issue is not one of any obligation for the returning State to alleviate the disparities between its health-care system and the level of treatment existing in the receiving State through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. The responsibility that is engaged under the Convention in cases of this type is that of the returning State, on account of an act – in this instance, expulsion – which would result in an individual being exposed to a risk of treatment prohibited by Article 3”.

The Home Office should be formulating policy in relation to considerations of medical condition cases and removals arising for the coronavirus.

In the meantime however, affected applicants and those relatives or friends entrusted to care and support them, should consider submission of effective representations with supportive evidence for leave to remain on discretionary grounds.

(14)CARERS CONCESSION

There are likely to be persons without leave to remain( or who hold leave to remain but need to switch ) who are caring for relatives who are permanently resident here or are British citizens.

Chapter 17, section 2 of the Immigration Directorate Instructions deals with how UK Visas and Immigration handles applications from carers – Section 2: carers

The United Kingdom’s position on carers and the ‘Care in the Community’ policy stems from existing case law, particularly the case of R v Secretary of State for the Home Department Ex parte Zakrocki.

The Carer’s Policy however stresses that UKVI and the Department of Health have consistently argued that the care in the community policy is not designed to enable people to stay in the UK who would otherwise not have leave to do so. Rather, leave should only be granted where it is warranted by particularly compelling and compassionate circumstances.

Leave to Remain – Carers for friends of a sick or disabled person

Home Office policy is that applications for leave to remain in order to care for a sick or disabled friend should normally be refused. However, in an emergency (e.g. where the patient has suddenly fallen ill and there is insufficient time to arrange permanent care or where there is nobody else in the United Kingdom to whom the patient can turn) it may be appropriate to grant leave.

Home Office Caseworkers are required to request written confirmation from the sponsor that the applicant is his/her friend. The sponsor will need to indicate how long he has known the applicant and will need to confirm that s/he agrees that the applicant can act as his/her carer. If this is not possible, Home Office caseworkers will need to request such confirmation from the sponsor’s relatives.

Consideration of the application

Application form FLR(HRO) can used to apply for leave to remain outside the Rules.

Whilst each case must be looked at on its individual merits, when considering whether a period of leave to remain should be granted, Home Office decision makers will consider the following:

• the type of illness/condition (this should be supported by a Consultant’s letter); and

• the type of care required; and

• care which is available (e.g. from the Social Services or other relatives/friends); and

• the long-term prognosis.

Granting an initial period of leave to remain

Where the application is to care for a sick or disabled relative, the Carer’s Policy states that it will normally be appropriate to grant leave to remain for 3 months on Code 3 (no recourse to employment or public funds) outside the Rules.

The applicant is required to be informed that leave has been granted on the strict understanding that during this period arrangements will be made for the future care of the patient by a person who is not subject to the Immigration Rules.

An extension of further leave should not be given unless there are wholly exceptional circumstances. Such circumstances could include where the sponsor is terminally ill and has no Social Services or family support available.

Requests for further leave to remain

Where an application is received requesting a further period of leave to continue to care for a sick relative or friend further detailed enquiries will be made by the Home Office to establish the full facts of the case.

The applicant will be required to produce the following:

• a letter from a registered medical practitioner who holds an NHS consultant post with full details of the condition/illness and long term prognosis; and

• a letter from the local Social Services Department, where they are known to be involved, advising of their level of involvement, the perceived benefits of the presence here of the applicant, and an explanation as to why suitable alternative care arrangements are not available.

• Any further evidence that alternative arrangements for the care of the patient have been, or are being, actively explored. For example, whether contact has been made with voluntary services/charities to see if they can assist or whether the possibility of private care has been costed and assessed. (a previous grant of a 3 month extension should have been accompanied by a letter explaining that the extension was granted to enable such arrangements to be made; and

• full details of the patient’s family in the United Kingdom, the degree of relationship, and, if applicable, details of how the patient was previously cared for and why these arrangements are no longer considered suitable and/or are no longer available; and

• details of the applicant’s circumstances in his home country, such as whether he has a spouse and children, the type of employment and other relevant family circumstances (as a general rule a person seeking to remain in the United Kingdom on a long term basis as a carer should normally be unmarried and have no dependants); and

• evidence that there are sufficient funds available to maintain and accommodate himself/herself without working or recourse to public funds.

An enquiry letter  set out in Annex B  of the Guidance can be used in cases where an applicant is applying for leave/further leave to remain on the basis that they are caring for a sick relative or friend. The letter’s questions are however not exhaustive and can be amended to fit the particular circumstances of the case.

Granting a further period of leave to remain

In cases where there are sufficient exceptional compassionate circumstances to continue the exercise of discretion, leave to remain may be granted for up to 12 months at a time, on Code 3 (no recourse to employment or public funds).

In wholly exceptional circumstances Code 1A (access to employment and public funds allowed) may be appropriate but the Guidance requires that such a decision must not be taken without the agreement of a Senior Caseworker.  In all cases it must be made clear to the carer that the Home Office are acting exceptionally outside the Immigration Rules.

Applications for Settlement

Home Office policy is that a carer will not normally qualify for settlement based on the time he has spent in the United Kingdom looking after a sick relative or friend unless he qualifies under the Immigration Rules relating to long residence or qualifies under some other category of the Rules. Indefinite leave to remain should be refused under Paragraph 322(1) of HC 395. Where an application for settlement has been received which falls for refusal, Home Office caseworkers will likely still consider whether further limited leave should be granted.

Refusal decisions

Where it has been decided that the facts of the case do not merit a grant of leave to remain outside the Rules, the application is likely to be refused under paragraph 322(1) of the Immigration Rules.

This refusal decision is required to be sufficiently detailed to satisfy an applicant and the Tribunal, should an appeal be lodged, that the application has been properly considered in line with the terms of the Carer’s concession. Its contents will form the basis of Home Office argument in any appeals explanatory statement or in the event of a further legal challenge.

For those who submit in time applications (i.e. the applicant still had valid leave at the time of application) as a carer any decision to refuse will attract a limited right of appeal.

If an out of time application, (i.e. the applicant had no valid leave at the time of application) for leave to remain/further leave to remain as a carer is received, any decision to refuse will not attract a right of appeal.

Other issues

Where someone is applying for leave to remain to care for a person who is not settled in the UK (for example, parents wishing to remain in the UK to care for their child while s/he receives treatment) such applicants will likely be considered for Discretionary Leave to Remain,

Applicants, who are refused leave as a carer, would not normally qualify for Discretionary Leave.

The Carer’s Policy provides that under the Care in the Community arrangements, some patients may qualify for an Attendance Allowance from which they can pay for a person to care for them. Attendance Allowance is a tax-free benefit for people aged 65 or over who need help with personal care because they are physically or mentally disabled. The allowance is paid to the patient rather than the carer and therefore the carer would not be considered to be in receipt of public funds. If the patient is claiming other benefits and is using these to support and accommodate the carer, provided that the patient is not claiming any extra benefit for the carer this should not be considered as recourse to public funds unless the carer was to claim benefits in his own right.

(15)APPLYING TO LIFT THE NO RECOURSE TO PUBLIC FUNDS CONDITION

There are migrants who have been granted leave under the private and family life route with no recourse to public funds who might be experiencing financial or other hardship which may necessitate a need to resort to pubic funds.

Paragraph 6 of the Immigration Rules provides the mearing of “Public Funds”.

Home Office Policy Guidance, Family life (as a partner or parent), private life and exceptional circumstances, Version 5.0, 10 December 2019,  sets out the criteria for the non-imposition or lifting of the no recourse to public funds condition code.

Home Office decision makers exercise discretion not to impose, or to lift, the no recourse to public funds condition code only where the applicant meets the requirements of paragraph GEN.1.11A of Appendix FM or paragraph 276A02 of the Immigration Rules on the basis of the applicant:

• having provided satisfactory evidence that they are destitute or there is satisfactory evidence that they would be rendered destitute without recourse to public funds

• having provided satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child on account of the child’s parent’s very low income

• having established exceptional circumstances in their case relating to their financial circumstances which, require the no recourse to public funds condition code not to be imposed or to be lifted

Home Office decision makers  are required to consider all relevant personal and financial circumstances raised by the applicant, and any evidence of these which they have provided.

The relevant application form to be completed by those  granted leave subject to the condition, Request for a change of conditions of leave granted on the basis of family or private life, requires the following to be submitted:

  • The  completed notification form;
  • The applicant’ existing Biometric Residence Permit (BRP) (where relevant), and passport (including  the Leave to Remain vignette where relevant);
  • Documentary evidence that the applicant meets the policy on granting recourse to public funds.

The applicant should provide evidence of their financial circumstances and living arrangements. This could include documents such as:

· Bank statements

· Savings account statements

· Pay slips

· Information about level of the applicant’s rent and bills

· Tenancy agreement or mortgage statement

· Utility and other relevant bills

· P45 / P60

· Letter confirming employment (the person writing should state their position in the company and provide contact details)

· Letter from Local Authority confirming that support is being provided

· Letter from registered charity or other organisation providing support

· Letter from family or friends who are providing support

· Any letter confirming that  the applicant or  their  spouse or partner is in receipt of public funds.

The applicant will need to explain what their  current financial circumstances are, how these may have changed, and how they are currently maintaining  themselves.

The completed form, the BRP, passport, and accompanying evidence of the applicant’s  financial circumstances need to be sent to:

TMT 20

PO Box 3468

Sheffield

S3 8WA

Or

Change of Conditions Request
FHR9
PO Box 3468
Sheffield
S3 8WA

The applicant does not need to pay a fee in order to make a request for a change of conditions of leave granted on the basis of family or private life.

If the applicant meets the requirements for an amendment to the conditions of their leave to allow recourse to public funds, the Home Office may send out a letter giving information about enrolling biometric information. This is stated to be required to done at a Service & Support Centre (SSC) for which they may qualify for travel assistance.

Where the application is successful, the applicant will be issued with a biometric residence permit lifting the no recourse condition.

In current circumstances, once again, the Home Office should be providing a designated email address to enable requests to be submitted, processed and decisions made quickly.

The stringent “unduly harsh test” in deportation cases applies even if the qualifying child is a British citizen

Deportation is a complex area of law.  Having full regard to recent judgments of the Upper Tribunal and higher courts serves as a useful reminder of the relevant principles, drawing attention to the latest key cases.

Although Patel (British citizen child – deportation) [2020] UKUT 45 (IAC) (29 January 2020) makes no easy reading, with the summary Headnote itself equally convoluted, not to mention paragraph 65  of the decision, which is quite difficult to follow, the decision is useful for its up-to-date reiteration of principles arising out of well- known caselaw.

Brief Background

The appeal concerned an Indian national, previously granted indefinite leave to remain in the UK in November 2013.  

He was a foreign criminal by virtue of the fact that on 26 January 2016 he was convicted of three counts of conspiring to conceal/disguise/convert/transfer/remove criminal property and one count of proceeds of crime money laundering – failure to disclose in regulated sector.

On 20 February 2017 he was sentenced to three years and six months’ imprisonment. The Appellant’s wife, also originally from India became naturalised as British citizen as did their son born in April 2013.

The relevant law

The legal requirements applicable to the Appellant’s case were those set out in section 117C of the Nationality, Immigration and Asylum Act 2002 and the broadly corresponding provisions of the Immigration Rules at paragraphs 398, 399 and 399A.

The requirements of paragraph 399(a)(ii) (a) and (b) are conjunctive.

The ‘unduly harsh’ requirement is  in two parts, dealing firstly with the 399(a)(ii)(a) limb, which focuses on whether “it would be unduly harsh for the child to live in the country to which the person is to be deported”.  Section 117C(5) of the 2002 Act imposes the same requirements.

The second limb of paragraph 399((a)(ii), is whether “it would be unduly harsh for the child to remain in the UK without the person who is to be deported”.

In KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53, Lord Carnwath stated at paragraph 5 that: “It is unnecessary to refer in detail to the Changes to the Immigration Rules made at the same time (paragraphs 398-399), since it is not argued that any differences are material to the issues before us. It is to be noted however that the question whether “the effect” of C’s deportation would be “unduly harsh” (section 117C(5)) is broken down into two parts in paragraph 399

As per CI (Nigeria) v The Secretary of State for the Home Department [2019] EWCA Civ 2027, Leggatt LJstated at paragraph 20: “Paragraphs 398-399A … are in very similar terms to section 117C(3)-(6) of the 2002 Act.”

The issues in the appeal

The  First Tier Tribunal Judge dismissed the Appellant’s appeal  on the basis there was a strong public interest in the Appellant’s removal and the effect of his deportation will not be unduly harsh on either his child or his wife, nor did the particulars of his private and family life amount to very compelling circumstances. 

The judge concluded that it would not be unduly harsh for the Appellant’s wife either to relocate to India or (if she chose) to remain in the UK with her son if the Appellant were deported.  As regards the Appellant’s child, the Judge found that even though it was in his best interests to be with both parents in the UK, it would not be unduly harsh for the child to relocate to India nor unduly harsh for him to remain in the UK.

Upon the appeal reaching the Upper Tribunal, it was noted that the Appellant conceded that he was not able to show that there were very compelling circumstances over and above those set out in paragraphs 399A and 399.

The Upper Tribunal also observed that grounds for permission to appeal raised no challenge to the judge’s finding that the wife could relocate without it being unduly harsh nor to the judge’s finding that it would not be unduly harsh for her to remain in the UK without her partner. Hence paragraph 399(b) (ii) and (iii) were not engaged.

With reference to section 117C(3)-(5) of the 2002 Act, the First Tier Tribunal Judge noted that,  the Appellant, having arrived in the UK in 2008, had not lawfully been in the UK for most of his life and therefore  he could not meet Exception 1. 

Accordingly, the Upper Tribunal stated that the  Appellant’s case hinged entirely on whether he could show that the judge materially erred in law in concluding that he did not meet the requirements of paragraph 399(a)(ii) (a)-(b) of the Immigration Rules and section 117C(5)  of the 2002 Act.

Recent caselaw considered

The Appellant’s Arguments

The appellants grounds were noted to fall into two main components, it being submitted that :

  • that the judge applied an unduly stringent approach to the public interest, as evidenced by her reference to there being “a strong public interest in the Appellant’s removal”. It was submitted that the Supreme Court in Hesham Ali [2016] UKSC 60 had made clear, that whilst great weight ought to be applied to the public interest in deportation, that weight was not a fixity.
  • that the judge’s treatment of the best interests of the child failed to take into account in assessing the ‘unduly harsh’ requirements that the son was a British citizen. The judge had failed to take into account that for the child to relocate to India would entail the loss of his rights as a British citizen, including his right to a British education and to grow up knowing what it means to be British and to establish social connections with other British citizen children in his formative years. The judge’s finding that it would not be unduly harsh for the child to relocate to India paid no attention to his British citizenship.  Given his mother’s unequivocal statement that she would have to go with her husband should he be deported, a statement supported by the medical evidence of her ongoing depression, that finding was material. It was highlighted that the judge accepted that: the appellant and his wife would not be able to afford a private education for their son on return to India, which would mean he would be taught in Gujarati, which he did not speak; that the son suffered from infantile scoliosis and required yearly checkups; and that the child’s school and friendship networks were “sources of happiness and stability” for the child that would be fractured by the move.  It was argued that at no point in this assessment did the judge treat “the British child’s best interests as a primary consideration”.

Upper Tribunal’s observations

  • In both section 117C(5)  of the 2002 Act and paragraph 399(a)(ii), what judicial decision-makers are being required to assess is a hypothetical question – whether going or staying ‘would’ be unduly harsh. They are not being asked to undertake a predictive factual analysis as to whether such a child would in fact go or stay.
  • The general position in international law, the rights that nationals possess are not rights to a particular quality of enjoyment of those rights.
  • In this case the Upper Tribunal was concerned throughout with British nationality in the form of British citizenship only, not with any other type of British nationality
  • Considering Article 8 jurisprudence generally, it is clear that nationality (in the form of British citizenship) is a relevant consideration both in the deportation/removal and the immigration context.

Taking stock of the relevant Strasbourg jurisprudence on Article 8, the Upper Tribunal derived that:

  • Article 8 cannot be considered to impose on a State a general obligation to respect immigrants’ choice of the country of their matrimonial residence and to authorise family reunion in its territory;
  • a relevant factor that must be taken into account is the nationalities of the various persons concerned. The Upper Tribunal could not find any support in this jurisprudence for extending this to include a principle that having a British citizen child furnishes powerful reasons for finding that the effect of the deportation of a parent on the child would be unduly harsh. What weight is to be given to citizenship appears to be left as a matter for each Contracting State’s “margin of appreciation”.
  • in order to establish the scope of the State’s obligations, the facts of the case must be considered. The Upper Tribunal observed that in this regard the Strasbourg jurisprudence reflected their own initial observations on the significance of nationality at the level of abstract principle, in particular that the rights and benefits that attach to nationality will depend heavily on the particular circumstances

Possession of British citizenship by the child does not mean that the person is exempted from the unduly harsh requirements

Applying the above analysis to the specific context of the unduly harsh requirements, the principal conclusions drawn from the Upper Tribunal’s analysis were twofold.

  • First, because the unduly harsh requirements are derivable from Article 8 jurisprudence, nationality (in the form of British citizenship) is a relevant factor when assessing whether the ‘unduly harsh’ requirements of section 117C(5) are met. However, it is not necessarily a weighty factor; all depends on the facts.
  • Second, in respect of the issue of whether it would be unduly harsh for a British citizen child to remain in the UK without one of his parents, it seemed integral to the framework set out in section 117C of the Act and paragraph 399(a)(ii) of the Rules that the possession of British citizenship by a child with whom a person (P) has a genuine and subsisting parental relationship does not mean that P is exempted from the unduly harsh requirements. Even though the child may be British, it has to be unduly harsh both for him or her to leave with P or to stay without P; not just harsh. Thus, some substantial interference with the rights and expectations that come with being British is possible, without the position becoming one of undue harshness to the child.

Akinyemi inapplicable

 It was observed that it was the appellant’s contention  that the judge’s assessment of the unduly harsh requirements of paragraph 399 was vitiated by applying more stringent consideration of the public interest than the statute specifies or requires. In summary, it was being argued that the judge (i) wrongly allowed public interest considerations to intrude into her unduly harsh assessment; and (ii) overstated the strength of the public interest.

The Upper Tribunal did not accept that the judge’s use of the term ’strong public interest’ somehow intruded into her unduly harsh assessment, nor was it accepted that the judge overstated the public interest. 

The Upper Tribunal concluded that the guidance given in Hesham Ali (as reconfirmed in Akinyemi) could not avail the appellant since it was expressly accepted that he could not succeed on the basis of “very compelling circumstances’ over and above those set out in paragraphs 399 and 399A. The analysis conducted of the public interest in Hesham Ali was in the context of cases where it was argued that there were very compelling circumstances. In any event, the asserted low risk of re-offending, cited on behalf of the Appellant could not on the facts of the case rationally cause the strength of the public interest to be reduced to any material extent.

The child’s British’s citizenship and unduly harsh test applied to the case

  • The Upper Tribunal not consider it fatal the mere lack of mention by the judge of the child’s British nationality in the context of assessing whether it would be unduly harsh for the child to live in India, since she had identified this as a relevant factor in the context of her best interests of the child assessment which she stated was her “starting point”. The judge had referred to the British citizenship of the child as one of four factors that led her to conclude that it was in the child’s best interests to be with both parents and to remain in the UK
  • Although the judge did not refer to the child’s British citizenship when assessing the issue of whether it would be unduly harsh to expect him to leave the UK, she was clearly cognisant of the relative advantages and disadvantages that flowed from that status and clearly understood that if the child departed he would not enjoy the rights and benefits he does presently. 
  • The Judge considered the child’s circumstances substantively. She specifically addressed the issue of education taking into account, inter alia, that the appellant and his wife would not be able to afford a private education for their son on return to India, which would mean he would be taught in Gujarati, which he did not speak. She also addressed the issue of medical treatment taking into account that  the son suffered from infantile scoliosis and required yearly check-ups. She also took into account that the child’s school and friendship networks were “sources of happiness and stability” for the child that would be fractured by the move.  It was within the range of reasonable responses for her to conclude that the disadvantages and hardships involved were not unduly harsh.
  • The Upper Tribunal noted that that the higher courts had confirmed many times that the threshold denoted by the ‘unduly harsh’ criterion is a high one: KO (Nigeria) at [23] (“One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation a parent”).
  • Whilst there was no reference to the significance of the child’s British citizenship, it was clearly part of the background accepted by the judge that in the UK the child was actually enjoying the rights and benefits of British nationality and that these would not be threatened or diminished by his father’s departure.
  • The grounds raised no challenge to the judge’s findings that it would not be unduly harsh for the Appellant’s wife to remain in the UK. Nor did the grounds raise any challenge to the judge’s assessment of the ability of the Appellant’s wife to care for the child in the UK.  In the context of the child remaining in the UK with his mother, it was plain that the child was in the UK enjoying in substance the rights and benefits of British citizenship. Hence any failure to address the child’s British nationality in this limb of the ‘unduly harsh’ test could not amount to a legal error since it was a premise of any such assessment that the child was enjoying such rights and benefits.