Several issues arose in Thakrar (Cart JR, Art 8, Value to Community) [2018] UKUT 336 (IAC) (19 September 2018), one of them being whether the Claimant’s UK resident family as “ clear and overwhelming net contributors to the UK economy”, should be a relevant factor to be taken into account and carry weight in the Claimant’s Article 8 claim.
The peculiarity relating to the core part of this case lay not in any fact that the Claimant herself had contributed in any way to the UK community but simply that the circumstances were that her British son’s business employed 40 persons with a turnover of around £950,000. The argument advanced on her behalf was that the public interest in her removal was diminished as there was no reason in principle why the contribution made by the family to society and to the economy should not be factored into the balancing exercise in terms of proportionality since it constituted a very distinct value to the community.
Contribution to the community may have some relevance if it forms part of the private life forged by a claimant whilst here. The contribution may throw light on the private life of a claimant, ie the value of the claimant’s various activities to the community in the UK. The main element in the public interest will normally consist of the need to maintain a firm policy of immigration control. On one side of the balance is the legitimate aim in pursuit of which removal is to be effected. On the other side of the balance, weighing against removal, is the individual’s right to respect for private life. The issue therefore, where someone is of great value to the community in the UK, is the strength of the public interest in his removal and whether the contribution is a factor which reduces the importance of maintaining firm immigration control in his individual case. Is the loss of such public benefit capable of being a relevant consideration when assessing the public interest side of proportionality under Article 8?
Taking cue from the caselaw considered by the Administrative Court in Thakrar, the following examples were noted as having been raised in relation to claimants who had sought to advance claims based on their contribution to the community:
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An applicant who had been part of an Indian folk music group. The Sikh community benefited from his playing at festivals where the applicant was a major attraction capable of attracting audiences of several thousands.
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An applicant who had established a business in the UK that employed a number of people.
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A person liable to removal who had been carrying on business in partnership. His removal could ruin the partnership business.
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A person liable to removal but was an essential and irreplaceable worker for a company engaged in a successful export business. His removal could seriously impair the business.
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A person liable to removal who is a social worker upon whom a particular local community has come to depend. His removal could deprive the local community of his services which will be difficult to replace.
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A person liable to removal who is an indispensable member of a team engaged in scientific research of public importance. His removal could put at risk the benefit which the public will enjoy if the research were successful.
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An applicant’s work and cultural activities
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A writer
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A poet and performer
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Educational progress in the UK
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Applicant’s value to the local community in connection with his work for a Refugees and Asylum Seekers Support Group, and other organisations, as well as organising a community football tournament for young people. The applicant helped the Welsh Refugee Council and was said by the chairman of the local mosque to be a highly valued member of “our community”. The local police diversity officer also referred to the applicant’s “assistance and guidance whilst helping the Muslim community”.
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An applicant who had made a significant contribution through his acting to the community in general and to disabled people in society.
Summary Background
The Claimant, a citizen of Kenya born in July 1948 and a widow, last entered the UK in July 2008 on a family visit. She had her son in the UK who she lived with every other week: he had no partner or child. She also had her daughter living in the UK, whom she spent most of the week living with. Her daughter had two children, aged 12 and 16. On the week she spent with the daughter she helped her by assisting with the children and cooking including fetching the children from school when she could. All the Claimant’s relatives were British citizens or settled in the UK.
Following her arrival in the UK, she overstayed her leave to remain however following other failed claims, she subsequently submitted a leave to remain application which was refused in a decision dated 5 April 2016. Upon appeal, the First Tribunal dismissed her human rights claim. Her applications for permission to appeal were refused by both tiers of the Tribunal. The Claimant then sought a judicial review of the Upper Tribunal ‘s refusal of permission to appeal.
The Administrative Court granted her permission to appeal and proceeded to hear her claim. The Claimant’s “Cart” judicial review involved determining whether the Upper Tribunal arguably erred in law in rejecting the grounds which accompanied the application for permission to appeal to it against the First-tier Tribunal’s decision and, if so, whether the second appeal criteria was met.
Other grounds upon which the challenge failed:
The following arguments were raised before the Administrative Court however failed to lift off the ground:
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The Claimant as the victim of crime in Kenya- It was rejected by the Administrative Court that the First-tier Tribunal Judge could be criticised for not taking into account the fact that the Claimant had twice been the victim of crime, whilst in Kenya during 2008. The criticism was not only found to be spurious but was also considered to be indicative of a lack of candour on the part of the Claimant and her family. The First-tier Tribunal Judge was not told about the previous appeal hearings, involving the Claimant.
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The Claimant’s grandchildren –The First-tier Tribunal Judge was noted to have been criticised for failing to make a finding about evidence regarding significant religious and cultural inputs made by the Claimant to the lives of her two grandchildren. The Court concluded that there was no evidence before the First-tier Tribunal Judge to begin to show that the grandchildren would be deprived of access to relevant religious instruction or that they would suffer any material degradation in their sense of cultural identity, were the Claimant to return to Kenya. It was considered that the First-tier Tribunal Judge had rightly noted that the grandchildren lived with their parents. The Claimant only stayed in the house only on alternate weeks. If she were removed to Kenya, the children would continue to live with their parents.
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Obstacles to integration- The First Tier Tribunal Judge was entitled to find that there would not be very significant obstacles to the Claimant’s integration in Kenya. The judge gave adequate reasons for that finding. He did not overlook any material evidence in this regard.
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The claimant’s health- The issue of very significant obstacles to integration in Kenya was closely entwined with that of the claimant’s physical and mental health. The evidence put forward regarding the Claimant’s alleged mental health difficulties was entirely historic in nature.
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Recourse to the NHS- The Claimant was observed to have criticised the judge’s finding, which stated that “even although I was satisfied that at the moment the appellant’s health needs are met privately, in the reasonably settled order of these things, that may well not be the case in the future”. The Administrative Court concluded the criticism of the judge, even if made out, could not be said in any way to be material. It was quite evident from the Judge’s decision that the outcome would have been the same, even on the basis that the Claimant would continue to seek private medical attention, should this be necessary.
Focus on the value to the community arguments- The significance of the family’s financial means:
The main argument advanced on the Claimant’s behalf was that in striking the proportionality balance under Article 8(2), the First-tier Tribunal Judge should have had regard to the fact that the Claimant’s son was running a substantial business, employing 40 people, with a turnover of £950,000 a year, and was, as such, an overwhelming net contributor to the UK economy.
Having considered several caselaw, the Administrative Court concluded as follows:
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Before coming to the conclusion that submissions regarding the positive contribution made to the United Kingdom by an individual fall to be taken into account, as diminishing the importance to be given to immigration controls, a judge must not only be satisfied that the contribution in question directly relates to those controls. He or she must also be satisfied that the contribution is “very significant”. In practice, this is likely to arise only where the matter is one over which there can be no real disagreement.
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The Court stated without in any way intending to be prescriptive, that it is likely that one touchstone for distinguishing between instances that lie, respectively, exclusively in the policy realm and in the area of Article 8, is whether the removal of the person concerned will lead to an irreplaceable loss to the community of the United Kingdom or to a significant element of it.
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If judicial restraint is not properly maintained in this area, there is a danger that the public’s perception of human rights law will be adversely affected.
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The Court considered that the following example was useful: “Let us assume a judge is faced with two human rights appeals in respect of individuals whose situations are entirely the same, save for the fact that one is a bus driver and the other a brain surgeon. The judge might have his or her own view as to which occupation is of more value to the United Kingdom. But that view, alone, should not lead the judge to treat them differently under Article 8. Were the judge to do so, he or she would be seriously trespassing upon the respondent’s policy realm”.
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It must be emphasised that UE (Nigeria) and Others v Secretary of State for the Home Department [2010] EWCA Civ 975 is binding authority that, in an appropriate case, the weight to be given to the importance of maintaining immigration control can be diminished by reason of the effect that the removal of the Claimant from the United Kingdom would have upon the community.
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Having regard to the Claimant’s case, the Court considered that there was no prospect of her son abandoning his business, and the employees who work in it, if she were to be removed to Kenya. It was observed that what the Tribunal was being asked to do could be distilled into the proposition that someone whose family makes a substantial contribution to this country’s economy ought thereby to be subject to a less stringent set of immigration controls than a person whose family does not make such a contribution. Not only was this, in its own terms, an extremely unattractive proposition. It was one which, if allowed to succeed, would inflict grave damage on human rights law. It would introduce an entirely unjustified distinction between the rich, and everyone else. It would also lead to calls for other forms of contribution to be so recognised.
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It is the case that wealth is a factor that can directly impact on a person’s ability to secure leave to enter or remain under the Immigration Rules. Examples are to be found in the rules relating to entrepreneurs, investors and retired persons of independent means. The fact that the Secretary of State’s immigration policies in some respects favour those who will not be a burden on public funds, if admitted to or allowed to remain in the United Kingdom, or might encourage the wealthy to come to this country, does not mean a person’s wealth thereby becomes a factor which, in the context of Article 8, generally diminishes the importance to be given to be given to the system of rules that the Secretary of State has chosen to frame, pursuant to his functions under the Immigration Acts.
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In the present case, the First-tier Tribunal Judge’s findings were that the Claimant, if returned to Kenya, could be financially supported by her United Kingdom family. It was clear that the family would have the requisite financial means to buy care services for the Claimant in Kenya.
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In dismissing the claim, the Court found that in all the circumstances, the First-tier Tribunal Judge was entitled to conclude that removal of the Claimant from the United Kingdom would not violate the United Kingdom’s responsibilities under Article 8 of the ECHR, whether to the Claimant or anybody else.
Conclusion
The door is clearly open to argue on appeal the value a person makes to the community in an Article 8 private life claim, however the judgment is littered with words of caution to Tribunal Judges to exercise judicial restraint.