Public Interest Considerations :Court of Appeal Gives Guidance On Concept Of “Precariousness”
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In Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803, the Court of Appeal sought to deal with several matters at once as regards issues of interpretation of Sections 117A to 117D in Part 5A of the Nationality, Immigration and Asylum Act 2002 (as inserted by the Immigration Act 2014). What was in issue therefore was the public interest question – ie the question whether an interference with a person’s right to respect for private and family life is justified under Article 8(2) of the ECHR.
The concept of precariousness in immigration status in subsection 117B(5), as distinct from the concept of unlawful presence in the UK in subsection117B (4) was clarified.
Sections 117B(2) (proficiency in English) and 117B(3) (financial independence) were also considered.
The meaning of the phrase “financially independent” in section 117B(3) was set out.
Brief Facts:
The appellant entered the UK on a student visa in 1997 and has been resident here since then. Over the years she extended her leave to remain as a student from time to time. In accordance with the Immigration Rules in force at the times of each application for leave to enter or remain in the UK as a student, in her applications the appellant had to demonstrate that she was pursuing a course of study in the UK and had to state her intention in each case to leave the UK at the end of her studies. Her leave as a student expired in November 2009 and her appeal rights were exhausted on 11 October 2010 and she became an overstayer. She sought leave to remain from the Secretary of State outside the Immigration Rules, relying on Article 8 of the ECHR , but this was refused in June 2013. The appellant appealed to the FTT, claiming that she should be granted leave to remain outside the Immigration Rules on the basis of her private life. In support of that claim the appellant relied in particular on her relationships with a friend, who she helped looked after and with her niece (and on the importance of the best interests of her niece, as a young child) and on her charitable work. She also emphasised her fluency in English and that she was not a financial burden on the state. The FTT dismissed her appeal by a decision promulgated in August 2014. The appellant appealed to the Upper Tribunal which by a decision of December 2014 found no error of law on the part of the FTT and dismissed her appeal. She then pursued an appeal in the Court of Appeal.
The Issue And Applicable law:
The appeal gave rise to issues of interpretation of the new provisions at Sections 117A to 117D in Part 5A of the Nationality, Immigration and Asylum Act 2002 (as inserted by the Immigration Act 2014). The Court of Appeal clarified that the appellant was not a foreign criminal and section 117C had no application in her case, however that it was relevant to refer to section 117C when addressing the issues of interpretation they had to consider.
Section 117A states that Part 5A applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under Article 8, and as a result would be unlawful under section 6 of the Human Rights Act 1998.
In considering the public interest question, the court or tribunal must (in particular) have regard in all cases, to the considerations listed in section 117B, and in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
The public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).
Section 117B sets out the public interest considerations applicable in all cases and provides that the maintenance of effective immigration controls is in the public interest.
Section 117B(2) provides that it is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English are less of a burden on taxpayers, and are better able to integrate into society.
Section 117B(3) states that it is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons are not a burden on taxpayers, and are better able to integrate into society.
Section 117B (4) provides that little weight should be given to a private life, or a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
Section 117B (5) provides that little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.
In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where the person has a genuine and subsisting parental relationship with a qualifying child, and it would not be reasonable to expect the child to leave the United Kingdom.
Section 117C provides for additional considerations in cases involving foreign criminals. The deportation of foreign criminals is in the public interest. The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies. Exception 1 applies where C has been lawfully resident in the United Kingdom for most of C’s life, C is socially and culturally integrated in the United Kingdom, and there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
Section 117D relates to Interpretation and clarifies that “qualifying child” means a person who is under the age of 18 and who is a British citizen, or has lived in the United Kingdom for a continuous period of seven years or more. “Qualifying partner” means a partner who is a British citizen, or who is settled in the United Kingdom.
Court’s Conclusions- Meaning of “the person’s immigration status is precarious” in section 117B(5):
“Precarious” is not a term of art with a clearly defined meaning in relation to immigration status.
The idea of precariousness in relation to the persistence of family life does not depend upon the presence of the family member in the host state being unlawful. A person would know from the outset that there would be precariousness in relation to the persistence of family life if he was given limited leave to enter or remain in the host state, where it was clear that he would have to leave at the end of a set period of time in the not far distant future.
The concept of precariousness in immigration status in subsection 117B(5) is distinct from the concept of unlawful presence in the UK in subsection117B (4). Even if the two concepts could be said to overlap, subsection (5) would be redundant if they were the same. The concept of precariousness in immigration status extends more widely, to include people who have leave to enter or remain which is qualified to a degree such that they know from the outset that their permission to be in the UK can be described as precarious.
In the context of section 117B, the relevance of precariousness of immigration status is the effect it has on the extent of protection which should be afforded to private life for the purposes of the Article 8 proportionality balancing exercise. The more that an immigrant should be taken to have understood that their time in the host country would be comparatively short or would be liable to termination, the more the host state is able to say that a fair balance between the rights of the individual and the general public interest in the firm and fair enforcement of immigration controls should come down in favour of removal when the leave expires. Assessed in this light, the appellant’s leave to be in the UK down to late 2010 (when she became an unlawful overstayer) constituted an immigration status that was clearly precarious in the relevant sense.
For each individual grant to the appellant of leave to enter or remain, the period of the grant was specifically limited to the comparatively short and clearly delimited period required for the completion of a course of study on each occasion.
When each grant of leave was made, the appellant specifically stated that her intention was to leave at the end of her period of study. The position, therefore, in respect of each application for leave to enter or for an extension of her leave to remain was that the appellant had a stated intention to leave the UK at the end of the comparatively short period of leave requested, and only a speculative hope that she might be permitted to stay for longer at that point. On any proper interpretation of section 117B(5) this was an immigration status which was precarious, and the FTT was correct so to hold. The Court of Appeal made it clear that this view accorded with that of McCloskey J sitting in the Upper Tribunal in Deelah and others (section 117B – ambit) [2015] UKUT 00515 (IAC) at para. [33].
In the light of the general public interest in the maintenance of effective immigration controls (section 117B(1)) and these particular aspects of that public interest, it is not unreasonable to expect a person who obtains leave to remain in the UK as a student to be prepared to leave at the end of their period of study, as they have said they intend to do, and to organise their private life accordingly.
The judgment in Jeunessev Netherlands, shows that it may be possible to find in an exceptional case that even a non-settled migrant has a sufficiently strong right to remain under Article 8 such that it would be disproportionate to remove them in an exceptional case.
The Court reserved their opinion about the submission of the Secretary of State that any grant of limited leave to enter or remain short of indefinite leave to remain qualifies as “precarious” for the purposes of section 117B(5). It was considered doubtful that this submission was correct. If that had been intended, the drafter of section 117B(5) could have expressed the idea more clearly and precisely in other ways.
Court’s Conclusions -The interaction of section 117A(2) and section 117B(5):
The starting point for consideration of the proper construction of Part 5A of the 2002 Act is that sections 117A-117D, taken together, are intended to provide for a structured approach to the application of Article 8 which produces in all cases a final result which is compatible with, and not in violation of, Article 8. In that regard, it was observed that both sides affirmed the approach to interpretation of Part 5A to ensure compliance with Article 8 as explained by this court in NA (Pakistan) v Secretary of State for the Home Department[2016] EWCA Civ 662, in particular at [26] and [31]. This was considered an important point when considering the interaction of section 117A(2) and sections 117B and 117C.
It is possible to conceive of cases falling within section 117B(4) (unlawful presence in the UK) or section 117B(5) (precarious immigration status in the UK) in which private or family life (as appropriate) of an especially strong kind has been established in the host country such that it should be accorded great weight for the purpose of analysis under Article 8: Jeunesse v Netherlands is a prime example. The provisions in Part 5A had to be construed in such a way as to accommodate this sort of case.
It was observed that it had been submitted on behalf of the appellant that in section 117A(2) the use of the formula, “the court or tribunal must … have regard [to]” the considerations listed in section 117B or in section 117C, as the case may be, in considering the public interest question – that is to say, the question whether an interference with a person’s right to respect for private and family life is justified under Article 8(2): see section 117A(3) – means that the court or tribunal is not bound in all cases to follow what Parliament says in those provisions. In the Court’s judgment, these general submission went too far. The Court stated that Section 117A(2) does not have the effect that, for example, a court or tribunal has a discretion to say that the maintenance of effective immigration control is not in the public interest, in direct contradiction of the statement of public policy by Parliament in section 117B(1). Where Parliament has itself declared that something is in the public interest – see sections 117B(1), (2) and (3) and section 117C(1) – that is definitive as to that aspect of the public interest. But it should be noted that having regard to such considerations does not mandate any particular outcome in an Article 8 balancing exercise: a court or tribunal has to take these considerations into account and give them considerable weight, as is appropriate for a definitive statement by Parliament about a particular aspect of the public interest, but they are in principle capable of being outweighed by other relevant considerations which may make it disproportionate under Article 8 for an individual to be removed from the UK.
Another type of consideration identified in Part 5A to which regard must be had under section 117A(2) is the statement in section 117C(6) that “the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2″. There is a similar requirement in section 117C(3), on its proper construction. In these provisions, Parliament has actually specified what the outcome should be of a structured consideration of Article 8 in relation to foreign criminals as set out in section 117C, namely that under the conditions identified there the public interest requires deportation. The “very compelling circumstances” test in section 117C(3) and (6) provides a safety valve, with an appropriately high threshold of application, for those exceptional cases involving foreign criminals in which the private and family life considerations are so strong that it would be disproportionate and in violation of Article 8 to remove them. If, after working through the decision-making framework in section 117C, a court or tribunal concludes that it is a case in which section 117C(3) or (6) says that the public interest “requires” deportation, it is not open to the court or tribunal to deny this and to hold that the public interest does not require deportation.
A similar point was considered by the Court to arise in relation to section 117B(6). Where this subsection applies, Parliament has stated that “the public interest does not require the person’s removal”. It was noted that the Court of Appeal has held that by this provision Parliament has again specified what the outcome should be (i.e. non-removal): see R (MA (Pakistan)) v Secretary of State for the Home Department [2016] EWCA Civ 705, [17]-[20]. It would not be open to a court or tribunal to hold that, contrary to the statement in this subsection, the public interest does require removal.
As regards the considerations identified in section 117B(4) and (5), which state that “little weight should be given to” private and family life in certain circumstances, these are considerations which do not amount to a definitive statement of the public interest, unlike section 117B(1), (2) and (3), and which do not involve a substantive conclusion regarding what the public interest requires when applying Article 8, unlike section 117B(6) and section 117C(3) and (6).
Reading section 117A(2)(a) in conjunction with section 117B(5) produces this: “In considering the public interest question, the court or tribunal must have regard to the consideration that little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious”. That is a normative statement which is less definitive than those given by the other sub-sections in section 117B and section 117C. Although a court or tribunal should have regard to the consideration that little weight should be given to private life established in such 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, where it is not appropriate in Article 8 terms to attach only little weight to private life. That is to say, for a case falling within section 117B(5) little weight should be given to private life established in the circumstances specified, but that approach may be overridden where the private life in question has a special and compelling character. Such an interpretation is also necessary to prevent section 117B(5) being applied in a manner which would produce results in some cases which would be incompatible with Article 8, i.e. is necessary to give proper effect to Parliament’s intention in Part 5A; and a similar interpretation of section 117B(4) is required, for same reasons.
In the Court’s view, reading section 117A(2) and section 117B(5) together in this way, as is appropriate, means that considerable weight should be given to Parliament’s statement in section 117B(5) regarding the approach which should normally be adopted. In order to identify an exceptional case in which a departure from that approach would be justified, compelling reasons would have to be shown why it was not appropriate. Identification of the test as one of compelling circumstances differentiates the position in an appropriate way from that applicable in relation to foreign criminals, in relation to which a test of “very compelling circumstances” applies.
In the Court’s judgment, the FTT did not err in its approach in saying that it was required by statute to attach little weight to the appellant’s private life established in the period when she was the beneficiary of a series of grants of leave to enter or remain as a student, and hence had a precarious immigration status for the purposes of section 117B(5). Before the FTT, the appellant did not contend that her case was one involving special circumstances to justify a departure from the approach set out in section 117B(5). Rather, her argument was that her immigration status at the relevant time was not “precarious”, which argument the FTT correctly dismissed.
Court’s Conclusions – Section 117B(2) (proficiency in English) and section 117B(3) (financial independence):
In the Court of Appeal’s view, the FTT was right to regard the appellant’s proficiency in English as a neutral factor. If the appellant had not been able to speak English, that would have been a negative factor under section 117B(2) to be brought into account in considering the public interest question of whether an interference with the appellant’s private life was justified under Article 8(2)
It does not follow that because a person is able to speak English that it is in the public interest that they should be given leave to enter or remain. Section 117B(2) simply does not say that. Therefore the FTT was correct to reject the appellant’s argument that section 117B(2) meant that it was in the public interest that she should be admitted. Within the scheme of Part 5A, her ability to speak English was only a neutral factor.
The Court of Appeal considered that the same reasoning applies in relation to section 117B(3). Contrary to the appellant’s argument, it does not provide that if she were financially independent it is in the public interest that she be granted leave to remain. It only indicates that it is a negative factor, potentially capable of justifying her removal from the UK compatibly with Article 8, if she is not financially independent. Again, under the scheme of Part 5A, the fact that a person is financially independent is a neutral factor.
The Court considered that the meaning of the phrase “financially independent” in section 117B(3) is an ordinary English phrase, and the FTT gave it its natural meaning, as indicating someone who is financially independent of others.This is the correct interpretation. The FTT was also entitled on the evidence to find that the appellant was not financially independent in this sense, and that this was a factor which counted against her in the Article 8 balancing exercise. There is no incompatibility with Article 8 to construe section 117B(3) in this way. In the context of an examination of the public interest question under Article 8(2) it is legitimate for Parliament to state that it is in the public interest that persons who seek to enter or remain in the UK are financially independent, for the reasons given. Being financially independent of others and able to support oneself is a matter which tends to minimise the risk that an immigrant might need to have resort to public funds. In the appellant’s case, for example, if her father and her friend ceased to support her she would probably seek to have recourse to public funds, whereas if she were financially independent she would not need to do so.
The Court of Appeal dismissed the appellant’s appeal and held that Upper Tribunal was correct to conclude that there was no error of law in the decision of the FTT.
Conclusion
The Court of Appeal placed considerable weight upon Parliament’s statement in section 117B(5) but in stating that although a court or tribunal should have regard to the consideration that little weight should be given to private life established a time when the person’s immigration status is “precarious”, they however left room for some creative argument: the approach in Section 117B(5) may be overridden in an exceptional case by particularly strong features of the private life in question, where it is not appropriate in Article 8 terms to attach only little weight to private life ie where the private life in question has a “special and compelling character”. This may appear a welcome lifeline to be grasped and used during the course of an appeal, however having regard to the facts of this case in particular the lengthy period of stay in the UK by the Appellant, such phrases used by the Court of Appeal seem suspiciously to already import some degree of unattainability – much like seeking to satisfy paragraph 398(c) applicable in criminal deportation cases, “the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A”.
