Court of Appeal on the very high public interest in deporting foreign criminals and the “very high bar” required to meet the “very compelling circumstances test”

Even with vulnerable British children under the age of 18years, a foreign national criminal convicted of serious offences and sentenced to a lengthy period of imprisonment, no matter a significant passage of time since that conviction, can still be open to deportation from the UK where the circumstances of his case are considered in law not to surmount the “ unduly harsh test” nor the “ very compelling circumstances test”.

This is exactly what happened in OH (Algeria) v The Secretary of State for the Home Department [2019] EWCA Civ 1763 (24 October 2019), where the Court of Appeal emphasised not only the high level of public interest in deporting any foreign criminal but also “ the very high bar” required to satisfy the “ very compelling circumstances test”.

Background

In OH (Algeria) v The Secretary of State for the Home Department [2019] EWCA Civ 1763 (24 October 2019), the Appellant, a national of Algeria, had long history of criminal offending in the UK. His previous convictions ran from 13 December 1988 to 28 January 2004. The 2004 conviction related to a term of 8years imprisonment for causing grievous bodily harm with intent to do grievous bodily harm. As a result of that conviction, the Appellant became subject to deportation proceedings. The Appellant, had last entered the UK in 1995 and been granted indefinite leave to remain on 10 July 2003 in light of his marriage to a British citizen. Following protracted proceedings after the issue of a deportation order and having won his appeal in 2011, the Appellant was granted successive grants of discretionary leave to remain until 25 May 2014.

OH stayed out of trouble between 2004 and 2014, however an attack in December 2014 on his eldest child, a daughter, led to a conviction on 16 March 2015 when he was convicted of assault occasioning actual bodily harm for which he was sentenced to 12 months imprisonment. The conviction triggered deportation proceedings once again.

On appeal, a First Tier Tribunal (FTT) Judge allowed his appeal. The Secretary of State appealed the decision. The Upper Tribunal ‘s first decision of 15 December 2017, concluded that the decision of the FTT contained an error of law, quashed that decision and ordered that the decision be re-made by the Upper Tribunal(UT). The second decision of 30 July 2018 by the Upper Tribunal dismissed the Appellant’s appeal against deportation on the grounds that, as a “foreign criminal” who had been sentenced to more than four years’ imprisonment, there were no “very compelling reasons” arising from his family life so as to outweigh the public interest in his deportation.

OH appealed to the Court of Appeal against the two decisions of the UT.

OH’s family circumstances

OH had five children with his British wife, who he had married on 8 April 1998. The eldest child (“Child A”) was a young adult and in good health. The second child (“Child B”), a daughter was aged 17. She had hearing problems and suffered from anxiety.

The third child (“Child C”), was 8 years old, had an episode of Bell’s Palsy without long-term effects. The fourth child (“Child D”), a boy aged 6, had been identified as “having a number of autistic spectrum disorder traits”. He experienced behavioural difficulties and could be aggressive and difficult to handle. He was also epileptic, experiencing absence seizures and was on medication for that condition. He had a chromosomal disorder which was linked to his behavioural problems and might in due course cause learning difficulties. He tended to be very active and to be a poor sleeper.

The youngest child (“Child E”), a daughter aged 5, had also been diagnosed as having a chromosomal disorder. She had a condition known as PICA, meaning that she would eat inappropriate things. The FTT had found that she had to be “constantly watched to ensure that she does not eat anything dangerous”. She could be aggressive and her chromosomal disorder could be linked to autism.

What the FTT Judge found

The FTT Judge’s approach having considered the principal facts, was to conclude that the Appellant could not benefit from Exception 1 to section 117C(4) of the 2002 Act and then turned to consider Exception 2, namely whether the effect of deportation on the Appellant’s partner or children would be “unduly harsh”. The FTT concluded that the Appellant could not succeed on the basis of Exception 2 alone, because of the previous sentence of eight years’ imprisonment. However, before proceeding to consider whether there were “compelling reasons over and above those described in Exception 2” it was necessary to see whether exception 2 could be satisfied.

Exception 1 as set out in section 117C(4) contained in Part 5A of the Nationality, Immigration and Asylum Act 2002, provides:

“(4) Exception 1 applies where—

(a) C has been lawfully resident in the United Kingdom for most of C’s life, (b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported”.

Exception 2 as set out in section 117C(5) of the 2002 Act provides:

“(5) 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”.

The relevant provisions for consideration where the Exceptions are not met is section 117(6) of the 2002 Act:

“(6) 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”.

The Immigration Rules, paragraphs 398 to 399A contain similar provisions.

In summary, the FTT Judge found:

• OH’ss relationships had improved and he wished to stay with his family and children: they needed him. He was calmer and more supportive and had started attending school and college meetings.

• OH remained in a genuine and subsisting marriage with his wife and there was a close bond between him and his children.

• While the offence of 2015 was serious involving a sustained assault on a child in her own home by her father it was not, given the level of custodial sentence imposed, an offence which could be seen at the most serious end of the scale.

• It would not be reasonable to expect the Appellant’s family to move to Algeria with him. It was in the best interests of the children to live with both parents. The FTT Judge considered the eldest daughter as one of those children, although she was already 18 years of age. As regards the impact of deportation on the eldest daughter, this would not mitigate the guilt and blame that she would feel if her father was deported. She would be likely to carry this with her for the rest of her life and this would affect her emotional wellbeing. The effect of the Appellant’s deportation on his daughter would be unduly harsh.

• In relation to the other four children, it was concluded that the children needed more input from their parents than would otherwise be required. Accepting that the family could be given some support from the wife’s family and from the local authority, this however would not be the kind of support that the Appellant could provide and the effect of deportation on the wife and children would be “unduly harsh”

• The length of time that the Appellant would face being excluded from the UK was a factor which required to be taken into account as the result of the exclusion would be that the Appellant could not come to the UK to visit his wife and children. At the very least the Appellant would face a 10 year exclusion from the UK which would limit his ability to see his family and three of his children were still very young and it was more likely that his exclusion would be indefinite.

• The Appellant’s three youngest children, who all had a strong bond with him, would be deprived of a physical presence and the love and affection of their father while growing up.

• Contact by modern methods of communication was no substitute for a parents’ physical presence in the family home.

• The absence of their father in their formative years would affect the children, in particular, [Child D] who was the only male child and who would have no key male role model in the home.

• The length of time that the Appellant had spent in the UK, ie approximately 23 was very lengthy period.

The FTT Judge found that these factors taken with the other factors considered above amounted to compelling circumstances over and above those described in Exceptions 1 and 2. He concluded that that the best interests of the Appellant’s children outweighed the very strong public interest in deportation of foreign criminals.

The Upper Tribunal’s judgments in overturning the FTT Judge’s decision

The Court of Appeal noted that in its decision of December 2017, the Upper Tribunal had concluded it was not satisfied that the FTT Judge’s reasoning disclosed that it gave appropriate weight to the public interest in deportation, in either its assessment of whether it would be unduly harsh for the children to remain in the United Kingdom if the Appellant were deported or in an assessment of whether there are very compelling circumstances over and above those identified in Exceptions 1 and 2. A proper analysis of the reasoning could be reduced to the fact that the children would be deprived of the physical presence and love and affection of their father whilst growing up and that Child D would have no key role model in the home. These matters, though, far from being very compelling reasons, were the natural consequences of the Appellant’s separation from the family. Of themselves such reasons were far from compelling. The Upper Tribunal also noted that there was considerable emphasis, when considering Exception 2, of the impact on the oldest child (Child A), despite the fact she was not a qualifying child for the purpose of such consideration. It was concluded that there was insufficient reasoning to bridge the gap between the facts of the case, as they had been found to be, and the conclusion that those facts constituted very compelling circumstances of the type required. The decision of the FTT Judge was set aside.

The Court of Appeal also observed that when OH’s appeal came to be remade by the Upper Tribunal in July 2018, UTJ Dawson concluded that, despite the earlier appeal against the Deportation Order in 2011, the 2004 conviction did fall to be considered when categorising the Appellant within the Rules or legislation. To that end he quoted from the decision of the Upper Tribunal in Johnson (Deportation – 4 years imprisonment) [2016] UKUT 282 (IAC). In reliance upon that decision, which he considered to have set out the correct approach, UTJ Dawson noted that the Appellant had received a warning when he was granted leave of what might well happen should he reoffend and he had done so. He was satisfied that the effect of the eight-year sentenced imposed in 2004, coupled with the twelve months sentence imposed in 2015, brought the Appellant squarely within the ambit of paragraph 398(a) with the result that the public interest in deportation would only be outweighed by other factors where there are very compelling circumstances.

UTJ Dawson also concluded that he did not find that deportation would be unduly harsh having regard to the seriousness of OH’s offending history including his reoffending after the warning given with the grant of leave following his successful appeal.

As regards the question of very compelling circumstances, UTJ Dawson concluded that the public interest in the case before him was even stronger and legislation required very compelling circumstances over and above those in the exceptions. There were aspects of the case which were out of the ordinary but in his judgment fell short of the very compelling. The Appellant’s wife had been able to cope in the past and would be able to cope in the future. She had others to turn to for support even if that was qualified. She would not be alone. It was accepted that the best interests of the children were for the claimant to remain. Their interests together with all the other factors that weighed in the claimant’s favour were not however strong enough to outweigh the strong public interest in deportation in the light of his criminal offending. His deportation would be a proportionate interference with the article 8 rights engaged in the appeal.

Court of Appeal’s considerations and conclusions

As regards the effect of NA (Pakistan) 2016 and KO(Nigeria) 2018, the Court of Appeal reiterated the principles as follows:

40.In approaching the application of section 117C(3), (4) and (5), that is to say whether either Exception 1 or Exception 2 may apply, both parties are agreed as to part of the effect of the decision of the Supreme Court in R (MA(Pakistan)) v Upper Tribunal [2018] 1 WLR 5273 (otherwise “KO (Nigeria) v UT”) . The leading judgment was given by Lord Carnwath, with whom the remainder of the Court agreed. Lord Carnwath identified the two categories of foreign criminal (paragraph 20). He then addressed the “difficult question … whether the specific Rules allow any further room for balancing of the relative seriousness of the offence [emphasis added] beyond the difference between the two categories…” (paragraph 21). The Court concluded that neither Exception 1 nor Exception 2 involved any further consideration of the seriousness of the Appellant’s offending, which could not bear on the specifics set out in Exception 1, or the level of “harshness” specified in Exception 2 (paragraph 23). Hence, both parties agree that the seriousness of the offending cannot affect whether or not Exception 2 is established. They are also agreed that, if the relevant foreign criminal falls within the higher category, where “very compelling reasons” are required, then the seriousness of the offending can indeed come into consideration in the balancing exercise, reflecting section 117C(2): “the more serious the offence … the greater is the public interest in deportation”.

53.Mr Saeed emphasised the approach laid down by this Court in NA (Pakistan) v SSHD [2017] 1 WLR 207:

“30. In the case of a serious offender who could point to circumstances in his own case which could be said to correspond to the circumstances described in Exceptions 1 and 2, but where he could only just succeed in such an argument, it would not be possible to describe his situation as involving very compelling circumstances, over and above those described in Exceptions 1 and 2. One might describe that as a bare case of the kind described in Exceptions 1 or 2. On the other hand, if he could point to factors identified in the descriptions of Exceptions 1 and 2 of an especially compelling kind in support of an Article 8 claim, going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2, they could in principle constitute “very compelling circumstances, over and above those described in Exceptions 1 and 2″, whether taken by themselves or in conjunction with other factors relevant to application of Article 8.”

The Court in OH, stated at paragraphs 51 of its judgement that the FTT Judge was obliged to consider first whether deportation would be “unduly harsh” (Exception 2) and then, even if that was established, whether there were “very compelling circumstances over and above those described” in Exception 2. The FTT Judge did follow that approach, in the sense that there was a proper self-direction in those terms, and the tribunal’s reasons were structured in that way.

However, in dismissing the Appellant’s appeal and upholding the Upper Tribunal’s decisions, the Court of Appeal concluded:

61.There was clearly a misdirection by the FtT in considering Exception 2. The Appellant’s eldest daughter was not a “qualifying child”. Yet she was a major focus of the FtT’s thinking under Exception 2.

62. The level of public interest in deporting any foreign criminal is high, as the statute makes clear. I bear in mind that, as the Supreme Court made clear in R (MA (Pakistan)), consideration of the extent or seriousness of the parent’s criminality falls outside the proper approach to Exception 2. In considering whether deportation would be “unduly harsh”, a tribunal must conduct the balancing exercise with the broad (but very high) public interest in deporting foreign criminals in mind. Looking at the degree of criminality at this stage will lead to confusion.

63.Beyond the error of considering the position of the eldest daughter on Exception 2, it seems to me that the FtT did indeed fail at the stage of considering whether “very compelling circumstances” arose. As a matter of language and logic, this is a very high bar indeed. The tribunal or court concerned cannot properly get to that stage unless and until it has found that the consequences of deportation will be not merely harsh, but “unduly” harsh. This must in effect mean “so harsh as to outweigh the public interest in deportation”, that public interest being the general one. It will be obvious that to go beyond that means a close analysis of the offender’s criminality, a recognition of the degree to which that elevates the public interest in the specific deportation, and then a clear consideration of whether (in this instance) the impact on family life would represent “very compelling reasons” so as to tip the balance. In my judgment, UTJ O’Connor was right in his decision. The FtT did not proceed clearly enough in that way. I fully accept and endorse the principle stated in English v Emery Reimbold. Review of the reasons given by a tribunal must not become a formulaic or “tick-box” exercise. Tribunals are not obliged to write extensive essays or indulge in an anxious parade of learning. However, when approaching a statutory test of “very compelling reasons”, a tribunal does have an obligation to be more than usually clear as to why such a conclusion is justified. Apart from any other consideration, full and clear reasoning will be protective of an appellant where such a finding is indeed justified.

65.I intend to address this very shortly. In my judgment it is quite unarguable that the conclusion of UTJ Dawson against the Appellant was irrational or indeed wrong. This Appellant has a long criminal record, including very serious offending, and culminating in a further significant offence against his daughter. I accept that life will be difficult for the family in his absence and the impact may properly be described as “harsh”, but that is not the test laid down by Parliament. Nor do I see any other basis in which this decision could be said to be irrational or wrong. I would dismiss this ground also”.

Conclusion

The basis upon which OH’s appeal was initially allowed by the First Tier Tribunal Judge and the factors taken into account as set out above, were subsequently considered by the Upper Tribunal to be flawed.

This is yet another deportation case where an FTT Judge has allowed an appeal but with that initial decision being subsequently overturned for lack of sufficient reasoning or failure to follow the correct legal approach.

Tribunal Judges should note as per the Court of Appeal at paragraph 63 above, when justifying a finding of very compelling circumstances “ Apart from any other consideration, full and clear reasoning will be protective of an appellant where such a finding is indeed justified”.

Overstaying spouse of a qualifying partner: Court of Appeal sets out correct approach to Article 8 family life rights

There is nothing “brand new” about the legal tests that the Court of Appeal applied in GM (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1630 (04 October 2019)

What is apparent however as tipping the balance in the Appellant’s favour as an overstaying spouse who had remained in the UK in breach of the Immigration Rules, is the fact that by the time her appeal came to be heard in the Court of Appeal, her husband and children had been granted settled status:

“In particular, the Secretary of State has now formally recognised that the husband and both children should be entitled to remain in the United Kingdom indefinitely. They have “settled” status. Their position is now no longer precarious in any practical or real sense….Three members of the family can stay permanently, but the mother cannot and on the analysis of the Respondent she must leave, and notwithstanding her decision to grant settled status to the husband and children they must leave with her if the family is to survive intact. On this analysis the family is placed in the most awful dilemma. If the father and children are to reap the benefits of their newly granted settled status, then they would have to do so without the wife and mother…………And in this appeal the Respondent opposes the Appellant’s arguments ………On the Respondent’s case, for the husband and children to enjoy the rights granted, great harm will therefore have to be imposed upon them all by the destruction and rupturing of a family life in this country. On the other hand, if the family is to be preserved as a unit then the father and the two children must leave the United Kingdom and thereby place in jeopardy their ILR and the settled status of three of the four family members……….No one questions that the best interests of the children lie in remaining with both parents. There is a deeply disjointed feel to this case. We are at a loss to understand why, in the light of the grant of ILR to the husband and children, the Respondent has not pragmatically agreed to revisit the position of the Appellant”.

In reference mainly to the following case law:

• Ali v SSHD [2016] UKSC 60

• Agyarko v SSHD [2017] UKSC 11

• KO (Nigeria) v SSHD [2018] UKSC 53

• Rhuppiah v SSHD [2018] UKSC 58

the Court of Appeal in GM(Sri Lanka) sought to apply the arising principles out of that caselaw in relation to:

• the proportionality test;

• the relative weight to be attached to various factors in the balancing and weighing exercise;

• the relationship between the Immigration Rule, the NIAA 2002 and Article 8;

• the meaning of “little weight” in sections 117B(4) and (5);

• the extent to which the “little weight” test applies to family rights;

• the relevance of a person’s immigration status in a family life assessment; and

• the relevance of “insurmountable obstacles” to return in the family life context

Background summary

The Appellant, a national of Sri Lanka, arrived in the United Kingdom on 18th January 2010 with entry clearance as a student. In or about January 2011, the Appellant met her husband. They married on 13th August 2012. The Appellant’s leave to remain expired on 30th May 2013. The Appellant’s husband who had been granted limited leave to remain until 2018 had been in the United Kingdom since 1998 and had not returned to Sri Lanka since that date. The couple had a child, born on 31st October 2012.

On 1st September 2014, the Appellant claimed asylum and also advanced an argument based upon the human rights claim. The decision of the Secretary was issued on 20th February 2015. It rejected both the asylum application and the human rights claim. The decision focused upon the Appellant’s asylum application and dealt secondarily with the claim under Article 8. The Secretary of State stated that the Appellant’s husband was not “settled” in the United Kingdom because he only had limited leave to remain until 5th February 2018 and the Appellant was not therefore entitled to apply for leave to remain as a parent. The Secretary of State considered exceptional circumstances and referred briefly to the fact that the husband had recently been granted discretionary leave to remain outside the Immigration Rules. The Secretary of State also focused upon the absence of insurmountable obstacles to return as a reason for rejecting exceptional circumstances.

An appeal against the decision was lodged with the FTT. By this time the Appellant had a second child with her husband. The decision of the First Tier Tribunal( FTT) Judge was promulgated on 25th August 2015. It rejected the appeal on all grounds. A subsequent appeal to the Upper Tribunal was rejected on 7th December 2015.

A Point of Principle: material change of circumstances and consideration of up- to -date evidence

The Court of Appeal noted that the judgment under appeal was made in 2015, however since then the Supreme Court had clarified a series of issues relating to the test to be applied under Article 8 in relation to the Immigration Rules and section 117B Nationality, Immigration and Asylum Act 2002 (“the NIAA 2002” and “section 117B”). The FTT Judge in the present case did not have the benefit of these judgments.

It was noted that the position of the family had materially changed in the period elapsing between the FTT judgment and the appeal in the Court of Appeal. There had been a material change of circumstances brought about primarily by fresh decisions made by the Home Office which have fundamentally altered the legal position of the Appellant’s husband and children by conferring settled status upon them. On 3rd August 2018, the Secretary of State granted indefinite leave to remain (“ILR”) to the Appellant’s husband and to her two children. This was discretionary for reasons not covered by the Immigration Rules. It was explained to the Court of Appeal during the hearing that the grant was because the husband had been granted Discretionary Leave to Remain (“DLR”) as a “legacy” applicant. Upon the basis of the Secretary of State’s policy as set out in “Asylum Policy Instruction- Discretionary Leave” Version 7.0 (18th August 2015) the father was on a pathway to settled status, and when this occurred the children would also acquire settled status as dependents. This was clear from the “Transitional Arrangements” set out in Section 10 of the Policy Document.

The Court stated that they had to consider the extent to which the decision they had to take reflected the most up to date position. This was considered to raise a point of principle.

The Court concluded that that if an appellate court finds that a lower court or tribunal acted lawfully by reference to the evidence before it but that based upon the facts now known to the appeal court to uphold the decision would violate fundamental norms, then the appellate court must ensure that the decision it takes is compliant with the law, ie under section 6 Human Rights Act 1998 all public bodies, including courts, must apply the Act and thereby the ECHR.

The Court therefore sought to apply a two stage process: by addressing the impugned FTT decision upon the basis of the evidence that was before the Judge but, in the light of the Court’s conclusion, then to consider the up to date evidence in relation to what followed by way of relief, in other words, to defer consideration of the changed circumstances.

In order to give effect to the Court’s conclusion that the FTT erred, they set aside the Decision and relevant judgments, however decided not remit the matter back to the FTT.

The Court of Appeal directed that the Secretary of State consider the position of the Appellant afresh, in the light of the altered circumstances.

The Proportionality Test explained

The Court of Appeal made clear the six preliminary observations about the test to be applied:

• 26.First, the IR and section 117B must be construed to ensure consistency with Article 8. This accords with ordinary principles of legality whereby Parliament is assumed to intend to make legislation which is lawful ……..Were it otherwise then domestic legislation could become inconsistent with the HRA 1998 and the ECHR and be at risk of a declaration of incompatibility.

• 27.Second, national authorities have a margin of appreciation when setting the weighting to be applied to various factors in the proportionality assessment….That margin of appreciation is not unlimited but is nonetheless real and important (ibid). Immigration control is an intensely political matter and “within limits” it can accommodate different approaches adopted by different national authorities. A court must accord “considerable weight” to the policy of the Secretary of State at a “general level”……..This includes the policy weightings set out in Section 117B. To ensure consistency with the HRA 1998 and the ECHR, section 117B must, however, have injected into it a limited degree of flexibility so that the application of the statutory provisions would always lead to an end result consistent with Article 8: Rhuppiah (ibid) paragraphs [36] and [49].

• 28.Third, the test for an assessment outside the IR is whether a “fair balance” is struck between competing public and private interests. This is a proportionality test…………….In order to ensure that references in the IR and in policy to a case having to be “exceptional” before leave to remain can be granted, are consistent with Article 8, they must be construed as not imposing any incremental requirement over and above that arising out of the application of an Article 8 proportionality test, for instance that there be “some highly unusual” or “unique” factor or feature: Agyarko (ibid) paragraphs [56] and [60].

• 29.Fourth, the proportionality test is to be applied on the “circumstances of the individual case”: Agyarko (ibid) paragraphs [47] and [60]. The facts must be evaluated in a “real world” sense: EV (Philippines) v SSHD [2014] EWCA Civ 874 at paragraph [58] (“EV Philippines”).

• 30.Fifth, there is a requirement for proper evidence. Mere assertion by an applicant as to his/her personal circumstances and as to the evidence will not however necessarily be accepted as adequate: In Mudibo v SSHD [2017] EWCA Civ 1949 at paragraph [31] the applicant did not give oral evidence during the appeal hearing and relied upon assertions unsupported by documentary evidence which were neither self-evident nor necessarily logical in the context of other evidence. The FTT and the Court of Appeal rejected the evidence as mere “assertion”.

• 31.Sixth, the list of relevant factors to be considered in a proportionality assessment is “not closed”. There is in principle no limit to the factors which might, in a given case, be relevant to an evaluation under Article 8, which is a fact sensitive exercise. This obvious point was recognised by the Supreme Court in Ali (ibid) at paragraphs [115ff]] and by the Court of Appeal in TZ (Pakistan) and PG (India) v SSHD [2018] EWCA Civ 1109 (“TZ”) at paragraph [29]. Nonetheless, there is in practice a relatively well trodden list of factors which tend to arise in the cases. We address those of relevance to this appeal below. But others exist, identified in Strasbourg and domestic case law, such as the personal conduct of an applicant or family member in relation to immigration control eg. breach of immigration rules or criminal law, or public order considerations; the extent of social and economic ties to the UK; and the existence of prolonged delay in removing the applicant during which time the individual develops strong family and social ties: See generally Ali paragraph [28] citing with approval Jeunesse v The Netherlands (2014) 60 EHRR 17 (“Jeunesse”)

Court of Appeal’s considerations and conclusions

The Court noted that at the heart of the appeal was whether, at base, the approach taken by the FTT Judge to the evidence was lawful, in the light of guidance set out in the Supreme Court judgments.

It was the Court’s judgment that (not having had the benefit of the Supreme Court rulings to guide her) the Judge erred in the approach that she adopted to the issue relating to Article 8 family life rights.

The Court of Appeal considered the appeal under the following headings and reached its conclusions:

The nature of the rights that risk being relinquished if a person has to leave in order to retain a family life:

• It was argued on behalf of the Appellant that the FTT failed to address a relevant consideration, namely the nature of the rights that (non-Appellant) family members might have to relinquish in order to leave and reside with the Appellant in Sri Lanka. It was pointed out that if the husband and children returned to Sri Lanka then under the present law, they stood to lose their present DLR and any advantages, such as legacy rights and a pathway to settlement, that such rights conferred.

• The Court of Appeal concluded the underlying point was a practical one: the law is not concerned with form but with the practical substance of the actual immigration status of the person in issue.

• In the present case the FTT Judge did not analyse or weigh the nature and relevance of the legacy rights held by the Appellant and the children as part of the proportionality exercise. That omission reflected a failure to address a relevant consideration.

The application of section 117B(4) and (5) and the weight to be attached to family life created when immigration status was precarious:

• It was argued on behalf of the Appellant that taken as a whole and upon a fair reading the Judge wrongly applied the “little weight” provisions of section 117B(4) and (5) to the generality of the evidence relating to family life and in so doing made an error of law and also of assessment.

• The Court of Appeal held that the starting point is that neither 117B(4) nor (5) has any material relevance in the context of a family life case such as the present. In Rhuppiah the Court clarified that the “little weight” provision in section 117B(4) applied only to private life, or a relationship formed with a qualifying partner, established when the person was in the United Kingdom unlawfully. It did not therefore apply when family life was created during a precarious residence ie. a temporary, non-settled, but lawful, residence, which was the case in this appeal.

• The FTT Judge did not distinguish between the weight to be attributed to family life rights and private life interests in the assessment which followed; they were treated as one. The FTT seemed to have considered that the “little weight” provisions were relevant and to this extent it followed that the Judge wrongly discounted the weight to be attached to the family rights relied upon in the proportionality assessment.

The relevance of awareness from the outset that the persistence of family life would be precarious:

• Advanced on behalf of the Appellant was the subjective knowledge of the family as to the persistence of their family life in the United Kingdom.

• It was noted that in Rhuppiah (paragraph [28]) the Supreme Court articulated the point as follows: “…the question became whether family life was created at a time when the parties were aware that the immigration status of one of them was such that the persistence of family life within the host state would from the outset be precarious”.

• It was pointed out on behalf of the Appellant that this was a different test from the normal precariousness test as applied to an applicant’s own, personal, private life interest (as set out in section 117B(5)). This is because the awareness referred to by the Supreme Court concerns the position of all the relevant parties, and in a family life case would include the partner of an Appellant or applicant and any children capable of being relevant on the facts to such an awareness.

• The Court of Appeal concluded that it seemed at least arguable that as of the date when the Appellant married her husband, he was by then on a recognised pathway to settled status which could, realistically, in due course have affected his and her knowledge of the ability of their family life in the United Kingdom to persist. The Court made no definitive findings on this save to say that the omission of any recognition or analysis of the issue by the FTT Judge was potentially material.

The paramountcy of the interests of the children:

• It was argued on behalf of the Appellant that the FTT Judge erred in her assessment of the position of the children. She conlcuded that the father was able to move to Sri Lanka and therefore he should, and any refusal to do so was his “choice”. That being so she held that the children would not suffer because the family could remain together in Sri Lanka. But she failed to analyse the case upon the basis of the unchallenged evidence, which was that the husband had strong reasons, including his legacy DLR status, which meant that he would not leave the United Kingdom. It was pointed out, in this regard, that were the father and children to leave for Sri Lanka they risked losing their valuable DLR status with its possible pathway to settled status.

• It was argued that the position of the children had to be analysed in the context of an acceptance that the father would stay and, this being so, the family would be ruptured and fractured and the children would suffer either from separation from their mother (one child was only two months old at the time) or from their father when it was common ground that he was the bread winner and the children benefited from having two parents.

• The Court of Appeal concluded that the law supported this argument. The Judge did not analyse the position of the children from the correct perspective. She proceeded upon the basis that the husband would make a choice that he said that he would not take. She ignored the implications of the fact that she did not reject his evidence about remaining in the United Kingdom. She overlooked the risk that the family could be ruptured as a result of her decision.

The relevance of the existence of in/surmountable obstacle to return:

• It was argued that on a fair reading of the judgment the FTT applied, in a mechanistic manner, an ability or capability test. The Judge simply asked whether the husband could return. Having rejected his asylum arguments, the Judge rejected cursorily arguments about the husband having no social or economic links in Sri Lanka given the length of time that he had been away from the country without ever having returned, and his argument that he would not be able readily to find employment. The analysis was conclusionary, partial and ignored relevant matters, such as the rights that the husband (and children) would risk losing if they returned to Sri Lanka (the husband’s legacy DLR with its established pathway to settled status for the husband and children).

• It was the Court of Appeal’s judgment that the Judge did err. It was noted that it was made clear by the Supreme Court in Ali that even if it is practicable and feasible for a person to return that is not the end of the story – proportionality must also be considered which necessitates a careful analysis of the fair balance that exists between the State’s interest in immigration control and the individual’s interests. In this case the State had accorded the husband and the children DLR and they were (at the time of the FTT hearing) on a pathway to settled status and this being so, the State had no discernible, sensible, objection to the husband and children being in the United Kingdom. This was relevant to any assessment of the proportionality of compelling the father and children to move to Sri Lanka if family life was to be preserved.

• In this case the Judge did not say that she was considering the “reasonableness” of the husband leaving and instead focused upon whether he had the ability / capability to move to Sri Lanka. The point was made for the Appellant that if her husband and children were to follow her then they would lose their leave to remain and with it the chance (which of course did materialise) of settled status in the UK. There was no analysis of whether in such circumstances this was proportionate or reasonable for the husband or for the children.

• In the Court’s judgment the Judge wrongly applied a mechanistic ability or capability test. She did not apply a proportionality test and she failed to address herself to relevant factors.