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

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

Article 8 of the ECHR provides as follows:

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

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

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

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

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

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

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

Paragraph 276ADE (1) provides as follows:

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

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

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

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

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

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

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

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

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

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

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

• the 10-year route is for:

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

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

o those who have exceptional circumstances

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6. SUITABLITY REQUIREMENTS-HOW DO THEY APPLY?

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

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

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

Where an application WILL be refused:

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

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

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

(a) attend an interview;

(b) provide information;

(c) provide physical data; or

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

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

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

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

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

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

Where an application WILL NORMALLY be refused:

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

Whether or not to the applicant’s knowledge –

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

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

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

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

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

Where an application MAY be refused:

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

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

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

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

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

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

7. HOW TO SUBMIT A VALID APPLICATION

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

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

Paragraph 276A0 of the Immigration Rules however provides that:

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

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

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

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

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

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

Submitting a valid Article 8 application

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

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

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

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

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

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

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

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

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

• a valid passport

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

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

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

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

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

Problems with proof of identity?

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

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

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

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

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

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

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

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

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

• birth certificate

• driving licence

• national health card

• national service document

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

Biometrics enrolment

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

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

8. WHAT DOES “CONTINUOUS RESIDENCE” MEAN?

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

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

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

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

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

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

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

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

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

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

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

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

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

9.TIMING OF THE APPLICATION

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

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

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

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

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

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

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

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

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

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

“Evidence of residence

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

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

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

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

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

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

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

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

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

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

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

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

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

11.THE RELEVANT HEADS OF CLAIM

The 20year Rule:

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

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

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

The 7year Rule:

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

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

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

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

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

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

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

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

Is it reasonable for the child to leave the UK?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Young Adults aged 18 to 24:

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

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

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

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

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

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

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

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

………………….

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

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

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

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

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

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

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

……………….

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

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

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

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

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

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

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

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

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

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

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

Vulnerable severely visually impaired woman returning to Nigeria:

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

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

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

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

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

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

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

Lone elderly widow returning to Pakistan:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Gender related harm – Iraq Kurdistan woman:

The appeal raised the following issues on asylum issues:

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

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

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

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

Severely deteriorated country conditions in Zimbabwe and length of stay:

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

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

14. CASELAW: CONSIDERATION OF THE VERY SIGNIFICANT OBSTACLES TEST

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prove destitution by clear evidence:

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

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

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

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

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

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

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

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

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

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

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

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

What does ‘exceptional circumstances’ mean?

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

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

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

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

What is the meaning of “unjustifiably harsh consequences” ?

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

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

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

A ‘relevant child’ means a person who:

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

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

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

The 5 Razgar questions- consideration of Article 8 claims:

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

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

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

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

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

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

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

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

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

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

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

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

Exceptional circumstances: grant of leave to remain

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

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

17.COMPELLING COMPASSIONATE FACTORS IN THE ALTERNATIVE

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

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

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

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

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

• Leave outside the rules (LOTR) (internal)

• Leave outside the rules (LOTR) (external)

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

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

18. HOW TO APPROACH AN ARTICLE 8 PRIVATE LIFE CLAIM

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

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

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

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

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

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

………………

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

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

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

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

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

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

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

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

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

……………………….

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

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

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

………………………………”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Immigration Rules Appendix FM provide:

“Immigration status requirements

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

(a) as a visitor; or

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

……………”

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

Immigration status requirements

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

• as a visitor

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

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

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

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

…………………….”

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

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

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

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

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

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

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

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

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

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

Covid- 19  switching Guidance effect  –  express waiver or concession

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5year or 10year route to settlement?

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

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

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

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

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

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

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

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

Possible issues

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

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

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

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

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

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

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

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

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

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

Immigration status requirement

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

(a) as a visitor; or

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

…………………”

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

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.