The Court of Appeal came down hard on the Secretary of State last week. And rightly so.
It is high time that the Secretary of State learns the harsh way that it is not every allowed appeal against deportation that must be pursued to the death in the higher courts.
Not only did the Court of Appeal in Secretary of State for the Home Department v Barry  EWCA Civ 790 (17 April 2018) maintain the decision of the First Tier Tribunal allowing an appeal against deportation but awarded costs on an indemnity basis to the intended deportee. This was on account of the conduct of the Secretary of State which was found by the Court of Appeal to be “indeed unreasonable to a high degree”.
Imagine the following scenarios:
Persons seeking to assert a right of residence as extended family members of EEA nationals exercising treaty rights in the UK;
Those the Home Office assert are party to a marriage of convenience with an EEA national with the result that, so far as the Home Office is concerned, the applicant is not a family member of an EEA national
This is what can happen when such persons are served with refusal decisions or following lodgement of appeal against such a refusal:
Detention with a view to removal and service of a “notice of removal window” (RED.0004 (fresh)). The notice of removal window is usually accompanied by a One-Stop Notice under section 120 of the Nationality, Immigration and Asylum Act 2002 . Section 120(2) provides that the serving of the One-Stop Notice requires the recipient to provide a statement, setting out his or her reasons for wishing to remain in the United Kingdom, and any other grounds on which he or she should be permitted to remain, together with any grounds on which he or she should not be removed from or required to leave the United Kingdom.
Despite the formalisation and introduction of the 7year provisions into the Immigration Rules, in practice the Home Office seem to abhor the very Rule that Government has entrenched into the legal framework. Where applications placing reliance upon the 7year Rule are refused, at appeal, Home Office Presenting Officers rarely take issue with establishment of fact of the child’s UK residence itself but fervently seek to sustain an attack focused upon the parent’s past conduct and behaviour, with the intended result that the public interest in removal becomes stronger.
The ancestry of Paragraph 276 ADE (1)(iv) is well set out between paragraphs 8 to 17 of PD and others v Secretary of State for the Home Department  UKUT 108 (IAC). In PD, the Upper Tribunal clarified at Para 12 of their judgement “…….in applications for leave to remain based on Article 8 private life, it has not been sufficient for a child applicant to have accumulated seven years continuous residence in the United Kingdom. Rather, the applicant has also had to demonstrate that he or she could not reasonably be expected to leave the United Kingdom”.
How old, ill, disabled or bereft of emotional support does an elderly parent have to be in order to satisfy the requirements of the Adult Dependant Relatives Rules?
From recent judgments in the higher courts and in practice generally, it seems that evidence provided in support of applications under this Rule can never be good enough nor sufficient.
In dismissing the appeal, the Court of Appeal in Ribeli v Entry Clearance Officer, Pretoria  EWCA Civ 611 (27 March 2018), has very recently confirmed what most already know- that the Adult Dependant Relatives Rules are “rigorous and demanding”. The Appellant found no refuge by relying upon Article 8 family life arguments in the alternative.