Unduly harsh test is met: FTT Judge allows appeal of a potential deportee he describes as a “ persistent, prolific offender, an unreformed offender”

The First Tier Tribunal Judge had two options in this appeal– to allow the Appellant’s appeal despite his criminal record and high likelihood of further offending or his family (and essentially his children) having to remain in the UK without their father.

A history of offending spanning over nearly 20years:

ZY entered the UK in 2002 from Zimbabwe on a visit visa valid for 6months. He remained in the UK without leave to remain however over the yeas sought unsuccessfully to advance an application for asylum including several human rights claims.

As regards ZY’s lengthy history  of offending, in summary, the following applies:

Between 2003 and 2011, ZY amassed several convictions for almost each year(bar 2005 and 2006).The convictions related to mostly driving offences but including convictions for assault and fraud.

Excluding the years 2015, 2016 and 2018, between 2012 and 2019, ZY continued to accrue criminal convictions.

Whilst an application to revoke the deportation order submitted in 2019 was pending to be decided and then with the period between 2020 and 2022 relating to the waiting period during which his appeal against the refusal of the human right application was pending to be heard, he had been in and out of prison twice.

At the time of his human rights appeal hearing in January 2022, ZY was on bail for an offence of driving while disqualified alleged to have been committed  in 2021. He was next due to appear at a Magistrates’ Court in March 2022.

Despite there being no conviction related to the alleged offence of 2021, at the time his appeal was heard in 2022, I encouraged ZY to prepare a supplementary statement so as to clarify the position to the Tribunal. Had he not done so, the Home Office Presenting Officer would almost certainly have brought up the issues on the day of the hearing.

Qualifying children:

ZY lives in the UK with his three British children  were born between 2007 and 2016 in the UK. He lives with the mother of his children, a Zimbabwean national who holds refugee status on a permanent basis.

A summary of the basis of the refusal decision:

The core parts of the refusal decision of 2020 included the following:

  • It was accepted ZY had a genuine and subsisting parental relationship with his children
  • The children’s best interests were however outweighed by the desirability of deporting foreign criminals. The children’s mother could provide suitable care for the children in ZY’s absence
  • It would not be ‘unduly harsh’ for his children if ZY was deported
  • The children would continue to have the advantage of the education, health and support services provided in the UK
  • ZY had extended family in the UK, who can help support the children
  • None of the children are financially reliant on ZY
  • Contact with the children would be maintained by modern means of communication
  • ZY did not meet the requirements for the exception to deportation on the basis of family life with his children
  • In relation to whether there were very compelling circumstances, there was a significant public interest in ZY’s deportation, given his criminal history and a deportation order was signed in 2011.

What was argued on behalf of ZY:

Submissions were as follows before the Tribunal Judge:

  • It was recognised the high degree of public interest in ZY’s deportation.
  • It was acknowledged that little reliance could be placed on ZY’s evidence.
  • It was only the effect that his deportation might have on others that could be weighed in the balance. In a case with two bad outcomes, the balance might just be in ZY’s favour.
  • Pointed out were the difficulties that ZY’s partner had in managing the children during ZY’s absence.
  • However imperfect he might be, ZY was part of the structure that kept the family together.
  • That was the background, against which the Independent Social Worker’s report must be viewed. That report had identified the negative impact of his incarceration on the family. Although the appellant may not merit any sympathy, his children do.
  • It was acknowledged that the risk of the appellant reoffending was high, but prayed in aid was the effect ZY’s deportation would have on his children as the only realistic ground he could have for avoiding deportation.

The Judge ‘s views in relation to ZY’s offending:

The Judge made the following stinging observations regarding ZY’s offending:

  • It was important to analyse ZY’s behaviour to identify the strength of the public interest in his deportation. It was apparent from the recitation of his criminal history, that he falls within the definition of ‘foreign criminal’ (section 117D(2) of the 2002 Act) because he is not a British citizen; has been convicted in the UK of an offence; and has been sentenced to a term of imprisonment of at least 12 months. That he is a ‘persistent offender’ is also plain.
  • ZY’s offending history largely speaks for itself, but in assessing the level of public interest in the appellant’s deportation, ZY was not just a persistent offender, he was prolific.
  • Not only did his offending continue, it escalated to serious sophisticated frauds.
  • Despite continuing to offend, ZY made the current application to revoke the deportation order in 2019.
  • The appellant’s attitude to offending and public safety is apparent from the criminal record. He is a prolific offender. He has serious offences involving sophisticated frauds, committed over many years; he has countless offences of driving while disqualified and with excess alcohol; he has an offence of assault. He has been sentenced to terms of imprisonment, immediate and suspended, community sentences, and an alcohol rehabilitation course. Nothing within the criminal justice setting has stopped him offending and re-offending.
  • It might be expected that involvement in immigration proceedings would encourage ZY to cease offending, knowing how continuing to offend was likely to be viewed by the Secretary of State and the Tribunals. It has not.
  • He has for many years been involved in immigration appeals while simultaneously profusely offending.
  • Factors that would very often end offending behaviour, such as an enduring relationship and family commitments have left the rate of offending unabated.
  • He has committed serious, sophisticated offences of fraud. He has not addressed those at all.
  • He totally disregards road traffic legislation, committing serious offences with the potential for great harm.
  • The 2020 OASYS report puts the risk of re-offending as high, and the risk of serious harm as medium. The report was accurate in its assessment of the likelihood of further offending, in that he again drove while disqualified in 2020.
  • Nothing about ZY’s circumstances or evidence suggested that he will not re-offend.
  • His criminal history, serious and persistent offending and high likelihood of further offending, made the public interest in his removal high.

Consideration of the Independent Social Worker’s Report:

An independent social worker’s report was obtained in 2020 following the refusal of the claim based on application to revoke the deportation order of 2011. In light of the Covid-19 pandemic, the appeal went unheard for nearly 2years. In January 2022, just before his appeal was heard, a second independent social worker report was commissioned, updating on the current circumstances in relation to the children.

The Judge noted the following:

  • There were significant events in the family’s life during the course of the proceedings, however the Judge had his starting point a Report of 2020 by an independent social worker.
  • The children were achieving milestones, enjoying school and performing well academically. The Report described a household in which all relationships were strong, appropriate and loving. Because at that time his Partner was working night shifts, ZY took the major caring role for their children during the day, including attending school events.
  • The Report confirmed that if ZY were permanently removed, his Partner would have to take on the caring role for the children and could not work. The Report also described the negative impacts reported on the children when ZY was absent for relatively short periods of time when serving a prison sentence. The Report identified that the children have no contact or familiarity with life in Zimbabwe, and it would not be practical for them to relocate there. The Report concluded that the best interests of the children were to remain together with both parents in the UK, and that ‘these children’s wellbeing will be negatively affected by their father’s long-term absence’.
  • The Judge noted that the Independent Social Worker is not required to address the issue whether it would be ‘unduly harsh’ for the family were ZY to be deported in light of his criminal record.
  • The Independent Social Worker was noted to have completed an updated independent report in January 2022. She again determined that the children’s best interests were to remain with both parents in the UK. The report was not required to address whether deportation is ‘unduly harsh’.

Why ZY’s appeal was allowed:

In allowing ZY’s appeal the Judge considered and found as follows:

  • Whether the decision to deport ZY would have unduly harsh consequences in terms of exception 2 depended in large part on the likely effect of removal. In making his findings on that aspect of the case, the noted that ZY was an unreliable witness: he presented himself in what he believed to be the best light at any point.
  • No reliance at all was placed on his evidence of reform or intention to give up a criminal lifestyle.
  • In assessing the effect of ZY’s removal on his children, the Judge took account of the most recent report by the Independent Social Worker Report( aspects of her report were quoted at length).
  • The Judge noted that he had identified the high degree of public interest in ZY’s deportation. He is a persistent, prolific offender; an unreformed offender; an offender who has been sentenced to between one and four years imprisonment.
  • That public interest in ZY’s deportation can be outweighed if he could show, on the balance of probabilities, that his removal would have unduly harsh consequences for his partner and/or children with whom he has a genuine and subsisting relationship: section 1175C of the 2002 Act.
  • Were he to be deported, that would effectively end the relationship with his children.
  • The Judge considered the effect of ZY’s deportation on his partner’s ability to care for the children, and for that reason alone took account of the effect of his deportation on her.
  • The issue was whether it would be ‘unduly harsh’ on the appellant’s children to remain in the United Kingdom if he were to be deported. The Judge took account of the best interests of the children, as required by section 55 of the Borders, Citizenship and Immigration Act 2009. All the children were British nationals, and that carried weight.
  • The refusal decision acknowledged that the children would not return to Zimbabwe with the appellant, so that were he to be deported his ties with his children would be, at best, by electronic means and occasional visits.
  • The Independent Social Worker identified that it is in the best interests of the children for ZY to remain in the United Kingdom. That was undoubtedly true, and the refusal decision acknowledged that, but that is a common feature of deportation of foreign criminals with children. However, from the report and other evidence, the Judge noted that he had to consider whether it would be ‘unduly harsh’ on them.

In setting out further considerations leading him to allowing the appeal:

  • The Judge noted that all the reports to which he access, including reports that were prepared because there had been concerns about ZY and his Partner’s ability to parent the children appropriately, had concluded that they are competent, loving parents, providing a safe home environment for the children.
  • ZY’s partner had by and large been the breadwinner, and worked at night, ZY had taken on most of the domestic responsibilities for the care of his children, a role that he has undertaken successfully, despite his criminal proclivities.
  • Were ZY to be deported, neither his Partner nor the children would accompany him. They would be left in the UK in the care of their mother. While the Judge found that there was significant practical and financial support from within the UK for the family, that would not be the same as the constant support of their father.
  • There was no doubt that the children would find ZY’s deportation very difficult. They were close to him. They would miss him. They may not understand what has happened.
  • It was apparent that ZY’s partner had more recently had difficulties in caring for the children. While the effect of ZY’s deportation would not be unduly harsh on his partner personally, her ability to care for the children, and the likely effect on their wellbeing, was an important feature.
  • As set out in the Independent Social Worker’s report, if ZY were not be present and should his partner feel under greater strain, it was not inconceivable that this addition pressure may present a greater risk of her physical chastisement of the children.
  • As imperfect a role model as he is, ZY was a vital part of the children’s lives, and his deportation would cause them (who are not responsible for his criminality) undue hardship.
  • The Judge did not accept that ZY was ‘reformed’. He found it likely he will reoffend, and there will be consequences of such offending on his liberty, relationship with his family, and ability to avoid deportation. However, the Judge found that currently his deportation would cause ‘undue hardship’ for his children, and therefore that he had satisfied the statutory exception 1 to deportation.

Secretary of State’s application for permission to appeal to the Upper Tribunal fails:

ZY’ appeal was allowed nearly four months after his appeal was heard.

A decision allowing the appeal was notified in April 2022.

In April 2022, the Secretary of State applied to the First Tier Tribunal for permission to appeal to the Upper Tribunal.

In the first week of June 2022, the First Tier Tribunal refused the application for permission to appeal.

Nearly four weeks later, the Secretary of State has not applied to the Upper Tribunal for permission to appal the April 2022 decision.

Current position:

ZY was convicted of a driving offence in March 2022 following his hearing in the Tribunal. His appeal in the Tribunal was allowed in April 2022 whilst he was serving a sentence related to driving offences.

Following a successful application for immigration bail after completion of his sentence,  he now awaits the grant of his leave to remain whilst he continues to support his partner with their children.

 

 

Getting to grips with the new Appendix Private Life and Guidance: what you need to know

Paragraph 276ADE (1) of Part 7 of the Immigration Rules has been deleted. This Rule provided for the requirements to be met by an applicant for leave to remain on the grounds of private life.

Appendix Private Life and its accompanying new Guidance: Private life: caseworker guidance, came into force on 20 June 2022, replacing the previous Private Life provisions in Part 7 of the Immigration Rules.

Appendix Private Life applies to all applications for permission to stay made on the basis of Private Life in the UK on or after 20 June 2022.

The Private Life Guidance currently provides at page 5, “There is separate guidance for considering applications for settlement under Appendix Private Life”.

In relation to the transitional provisions, where a Home Office decision-maker is considering an application made before 20 June 2022, they are required to do so under the Rules in force on 19 June 2022, taken in combination with the previous casework guidance (Family life as a partner or parent, private life and exceptional circumstances version 16 and Concession to the family Immigration Rules for granting longer periods of leave and early indefinite leave to remain version 2).

APPENDIX PRIVATE LIFE- A SUMMARY

An application under the Private Life Route is required to meet the following requirements by reference to Appendix Private Life and its accompanying Guidance:

  • Validity
  • Suitability
  • Eligibility
  • Residence
  • Continuous residence
  • Qualifying period for settlement applications
  • English language (settlement applications only)
  • Knowledge of Life in the UK (settlement applications only)

In essence, the four broad categories that existed previously under the private life routes by reference to now deleted Paragraph 276ADE(1), have been largely carried over to Appendix Private Life( with  the introduction of five new categories set out at the end of the list immediately below):

  • “7year Rule” – permission to stay application, ie limited leave to remain
  • Young adults who meet the “half -life” test – permission to stay application
  • 20years continuous residence in the UK – permission to stay application
  • Less than 20years continuous residence in the UK and meeting the “very significant obstacles to re-integration” test – permission to stay application
  • Application for settlement by a child who was not born in the UK who has or last had permission to stay on the private life route as a child and who has lived in the UK for a continuous qualifying period of 5 years with permission granted pursuant to permitted routes which count towards the qualifying period
  • Application for settlement by a young adult who was not born in The UK who has or last had permission to stay on the private life route as a young adult who met the half-life test and who has lived in the UK for a continuous qualifying period of 5 years with permission granted pursuant to permitted routes which counts towards the qualifying period
  • Application for settlement by an applicant who was been born in the UK, is able to provide a full UK birth certificate, and has lived continuously in the UK since their birth for at least 7 years at the date of application and it is not reasonable to expect the applicant to leave the UK.
  • Application for permission to stay as a dependent child born in the UK to a person on the private life route
  • Permission to stay where there would be a breach of Article 8 of the ECHR on the basis of private life- i.e where the applicant does not meet some of the suitability requirements or does not meet any of the eligibility requirements for permissions to stay applications

In relation to grants of permission to stay, where it is the applicant’s first grant of permission on the private life route and they are a child (under 18 at the date of application) or a young person (aged between 18-24 at date of application and meet the half of life test), the applicant will be able to choose within the FLR(FP) application whether they should be granted 30 or 60 months leave. All other applicants granted permission on the private life route will be granted leave for 30months.

LONGER PERIODS OF LEAVE OR EARLY ILR – WHAT HAS HAPPENED TO THE CONCESSION INTRODUCED IN OCTOBER 2021?

 The Private Life Guidance provides clarifications, stating:

“In October 2021 a concession was introduced to grant young adults longer periods of leave and early indefinite leave to remain on the basis of private life. This concession allowed a person who had arrived in the UK as a child to qualify for settlement after 5 years if they had been granted leave on private life or family grounds and had completed 5 years after the age of 18 with such leave. This concession ended when it was incorporated into the Immigration Rules on 20 June 2022 along with the other changes set out in the Background section above”.

Whilst the Concession enabled grants of ILR to eligible young adults without the need to undertake the Life in the UK test or satisfy the English language requirement, Appendix Private life requires, subject to exemptions, these requirements to be met in relation to settlement applications.

WHAT IS THE PRIVATE LIFE ROUTE?

Private life, as enshrined in Article 8 of the ECHR, is a general right that is applied to cases in an individual way. It states:

8(1) Everyone has the right to respect for his private and family life, his home, and his correspondence.

8(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.

  • The Home Office position is that Article 8 ECHR is a qualified right so as to allow countries to set 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.
  • It is considered by the Home Office that the Private Life Immigration Rules express a policy on private life that is compatible with Article 8 ECHR on private life. In the event of an adverse decision and an appeal being considered, section 5A of the Nationality Immigration and Asylum Act 2002 is the primary legislation and is considered by the Home Office to be designed to produce in all cases a final result which is compatible with Article 8 ECHR, including in those cases where the requirements of the Immigration Rules may not have been met.

Appendix Private Life itself provides:

Immigration Rules Appendix Private Life

The Private Life route is for a person seeking permission to stay in the UK on the basis they have developed a Private Life in the UK…….The Private Life route is a route to settlement”.

APPLICATION PROCEDURE-VALIDITY REQUIREMENTS FOR PERMISSION TO STAY APPLICATIONS

Validity requirements for permission to stay(leave to remain):

Appendix Private Life states:

“Validity requirements for the Private Life Route

PL 1.1. A person applying for permission to stay on the Private Life route must apply online on the gov.uk website on the specified form: “Application to remain in the UK on the basis of family life or private life”.

PL 1.2. An application for permission to stay on the Private Life route must meet all the following validity requirements:

(a) any fee and Immigration Health Charge must have been paid (unless the applicant has been granted a fee waiver in whole or in part); and

(b) the applicant must have provided any required biometrics; and

(c) the applicant must have provided a passport or other document which satisfactorily establishes their identity and nationality; and

(d) the applicant must be in the UK on the date of application.

PL 1.3. If a private life claim is made under Article 8 of the Human Rights Convention and it is made:

(a) at the same time as a protection claim or further submission in person after a protection claim has been refused; or

(b) when the applicant is in detention (and the claim is submitted to a prison officer, custody officer or a member of Home Office staff at the place of detention); or

(c) during an appeal (subject to the consent of the Secretary of State where applicable), the requirements at PL 1.1. and at PL 1.2. (a) and (c) will be waived.

PL 1.4. An application which does not meet all the validity requirements for the Private Life route is invalid and may be rejected and not considered”.

  • Information on validity and the process for considering whether to reject an invalid application can be found in the Validation, variation and withdrawal of applications guidance.
  • If the application does not meet all of the validity requirements set out in paragraphs PL 1.1. and PL 1.2. the application is invalid and may be rejected and not considered. This does not apply when considering certain Article 8 claims that do not require a valid application.
  • If the application meets all of the validity requirements, or the Home Office have otherwise decided to accept the application as valid, the next stage in consideration will be whether it meets the suitability and eligibility requirements for permission to stay.

SUITABLITY REQUIREMENTS

Applicants seeking permission to stay on private life grounds can be refused for specified suitability reasons. The majority of suitability reasons are set out in Appendix FM because private life and family life both come within the scope of Article 8 ECHR. There is one suitability ground in Part 9 in relation to refusal based on sham marriage.

The Private Life rules state that the applicant must not fall for refusal under the suitability grounds for refusal as set out in the relevant rules in Appendix FM or Part 9. The Home Office will consider the application against those rules and come to a decision on whether it falls to be refused under them.

Before a Home Office decision-maker grants permission to stay on the private life route, they are required to check the applicant is suitable. The suitability requirements for:

  • applicants are set out in paragraphs PL 2.1. and PL 2.2. of Appendix Private Life
  • dependent children born in the UK to a person on the Private Life route are set out in paragraphs PL 20.1. and PL 20.2 of Appendix Private Life

To meet paragraph PL 2.1. or paragraph PL 20.1., the applicant must not fall for refusal under any of the grounds for refusal in paragraphs SLTR.1.2. to S-LTR.2.2. and S-LTR.3.1. to S-LTR.4.5. of Appendix FM.

The suitability requirements in Appendix FM fall into 3 categories:

  • mandatory requirements – the application must be refused if any of paragraphs S-LTR.1.2. to S-LTR.1.8 apply
  • non-mandatory requirements – the application will normally be refused if paragraph S-LTR.2.2. applies
  • discretionary suitability grounds – the application may be refused if any of paragraphs S-LTR.4.2. to S-LTR.4.5. apply

To meet paragraph PL 2.2. or PL 20.2., the applicant should not fall for refusal under paragraph 9.6.1. of Part 9: grounds for refusal on the basis of a sham marriage or civil partnership.

When considering the suitability requirements in Appendix FM and Part 9 of the Immigration Rules, the Home Office decision-maker will refer to the following guidance:

  • S-LTR.1.2.: Criminality in ECHR cases guidance
  • S-LTR.1.3., S-LTR.1.4.: Criminality guidance
  • S-LTR.1.5., S-LTR.1.6, S-LTR.1.8.: Suitability: non-conducive grounds for refusal or cancellation of entry clearance or permission guidance
  • S-LTR.1.7.: Suitability: failure to provide required information, attend interview
  • S-LTR.2.2., S-LTR.4.2., S-LTR.4.3.: Suitability: false representations
  • S-LTR.4.4.: Suitability: unpaid litigation costs
  • S-LTR.4.5.: Suitability: debt to the NHS
  • Para 9.6.1.: Suitability: sham marriage or civil partnership

If the applicant does not meet all the suitability and eligibility requirements and refusal would not breach Article 8 of the Human Rights Convention, the application on the private life route will be refused.

THE “7YEAR RULE”

Residence requirements and periods of grant of permission to stay- “7 Year Rule”:

Appendix Private Life provides:

“Eligibility requirements on the Private Life Route

Residence requirements for a child on the Private Life route

PL 3.1. Where the applicant is aged under 18 at the date of application the following requirements must be met:

(a) the applicant must have been continuously resident in the UK for at least 7 years; and

(b) the decision maker must be satisfied that it would not be reasonable to expect the applicant to leave the UK”.

………………

“Period and conditions of grant of permission to stay on the Private Life route

PL 10.1. If the applicant is under 18 at the date of application (or was under 18 when first granted permission on the private life route), they will be granted permission to stay for either:

(a) 30 months, where the applicant has applied for a period of 30 months; or

(b) 60 months, where the applicant has applied for a period of 60 months”.

The Private Life Guidance states at pages 9 to 10 and 17 to 18:

  • A child who has been resident in the UK for 7 years may be considered under the private life rules if applying on their own or if applying as part of a family group. In all family applications, Home Office decision- makers are required to check whether any children included in the application have been resident in the UK for 7 years. If so, the Home Office will firstly need to consider whether the child meets the continuous residence requirements under the private life rules and if so, that it is not reasonable for the child to leave the UK.
  • If a child meets the requirements of the private life rules and their parent(s) meet the family rules in Appendix FM, the child could also fall for a grant of permission under Appendix FM as a dependent child (if they meet all other requirements). Where a child meets both Appendix Private Life and Appendix FM, they should be granted under Appendix Private Life as this gives the child the most favourable grant of leave and allows a shorter route to settlement. This may on occasion result in a child being granted a different length of leave and different duration to settlement than their parent(s) or other family members.
  • To meet the residency requirements, the child must be under 18 years old and have been continuously resident in the UK for 7 years on the date of application.
  • A person applying for an extension of permission on the private life route who was initially granted permission under either Appendix private life or paragraph 276ADE in Part 7 may no longer be under 18 at the date of application for an extension. The applicant will be eligible to extend their permission to stay under PL 10.1 if they were initially granted as a person who was under 18 years old with 7 years residency when first granted permission to stay on the private life route.

The Reasonable test:

In relation to the Reasonable test, the Private life Guidance states:

  • If the child meets the residence requirements, the decision-maker will consider whether it is reasonable to expect the child to leave the UK. Considered will be all the information provided by the applicant, together with any other relevant information that is available.

As regards assessing whether it is reasonable to expect a child to leave the UK, the Guidance states:

  • The reasonable assessment must take place in every case where the child has shown continuous residence for 7 years as a child. This is consistent with the approach taken by the Court of Appeal in the case of AB Jamaica – Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661.
  • The assessment must look at what is reasonable based on the child’s current circumstances. This refers to the present state of affairs and not to the future. The starting point is that the Home Office would not normally expect a qualifying child to leave the UK. The assessment must be specific to the child’s situation.

The Home Office decision-maker must consider:

  • the age of the child
  • whether the child has ties to the UK including relationships with other family and friends whose lives are established in the UK
  • who the child would be expected to leave the UK with – it is normally in the best interests of the child for the family to remain together
  • whether they have family and friends in their country of return
  • whether they have ever visited the country of return, for how long and when

A grant of permission to stay to a child on private life grounds does not mean any parental permission to stay will be of the same duration.

Useful caselaw is: KO (Nigeria) and Others v Secretary of State for the Home Department [2018] UKSC 53. In this case the Supreme Court found that ‘reasonableness’ is to be considered in the real-world context in which the child finds themselves. And so, if the circumstances of a child’s parents are that both are going to leave the UK, it is reasonable for the child to be treated as likely to leave with them, unless there is a reasonable basis, supported by evidence, for not taking that view.

Settlement under the “7year Rule”:

Appendix Private Life states as follows in relation to the qualifying period requirement for settlement for an applicant who has had permission to stay on the private life route as a child.

“Qualifying period for settlement on the Private Life route( where the applicant was not born in the UK)

PL 14.1. An applicant who has, or last had, permission to stay on the private life route as a child……. must have lived in the UK for a continuous qualifying period of 5 years with permission as set out in PL 14.3 or 14.4.”

YOUNG ADULTS AND MEETING THE HALF- LIFE TEST

Residence requirements and periods of grant of permission to stay- young adults:

“Eligibility requirements on the Private Life route

..

Residence requirements for a young adult on the Private Life route (where the applicant arrived in the UK as a child)

PL 4.1. Where the applicant is aged 18 or over and aged under 25 at the date of application and arrived in the UK before the age of 18, the applicant must have spent at least half their life continuously resident in the UK”.

….

Period and conditions of grant of permission to stay on the Private Life route

PL 10.2. If the applicant is a young adult who has spent half their life in the UK at the date of application (or was previously granted as a young adult on the private life route), they will be granted permission to stay for either:

(a) 30 months, where the applicant has applied for a period of 30 months; or

(b) 60 months, where the applicant has applied for a period of 60 months”.

The Private life Guidance states at pages 18 to 19 as regards the residence requirements for a young adult:

  • An applicant aged 18 years or over and under 25 years must have arrived in the UK as a child and have lived continuously in the UK for at least half their life at the date of application.
  • The rationale for the half of life test is that the greater the proportion of a child or young person’s life has been spent in the UK, the more likely it is that the child or young person can be said to have established their own private life in the UK. Under these rules if the residence requirement is not met as set out, then paragraph PL 8.1. of Appendix Private Life requires an Article 8 consideration to take place.
  • A person applying for an extension of permission on the private life route who was initially granted permission under either Appendix Private Life or paragraph 276ADE in Part 7 may no longer be in the young person age bracket (for example, they may be 25 or over) at the date of application. The applicant will be eligible to extend their permission to stay under PL 10.2 if they were initially granted as a person who was 18 or over but under 25 years old and met the half of life test when first granted permission to stay on the private life route.
  • Those individuals who arrived as children and are applying over the age of 18, but do not meet the requirement of having lived in the UK for at least half of their life may still qualify. They may wish to apply as an adult who has lived continuously in the UK for less than 20 years and will need to demonstrate there would be very significant obstacles to their integration into the country where they would have to live if required to leave the UK. They will not be eligible though if they have lodged a protection or asylum claim which has been declared inadmissible.

CHILDREN AND YOUNG ADULTS- CHOICE OF GRANT OF 30 OR 60 MONTHS LEAVE

Private Life Guidance states at pages 32 to 34:

  • If this is the applicant’s first grant of permission on the private life route and they are a child (under 18 at the date of application) or a young person (aged between 18-24 at date of application and meets the half of life test) the applicant will be able to choose whether they have 30 or 60 months leave( within the FLR(FP) online application form).
  • An applicant who was initially granted permission as a child or young person either under Appendix Private Life or under paragraphs 276BE(1) or 276BE(2) of Part 7 and is extending their permission to stay will also be able to choose whether they are granted 30 or 60 months leave. As the applicant is extending their leave, they may no longer be a child (for example, they may be over 18) or young person (for example, they may be over 25) at the date of application but they must have met the relevant age criteria when they were first granted leave on the private life route.
  • The Home Office will check what length of leave the applicant has requested on the application form and that the applicant is entitled to choose their leave.

As regards payment of the Immigration Health Surcharge, the Guidance states:

  • Children and young people who meet the half of life test have a choice on the duration of leave granted. They can choose either 30 or 60 months leave. The applicant will have self-identified as part of the application process whether they are currently a child or young person or were a child a young person when first granted leave on the basis of their private life. The cost of an application under the private life rules is the same irrespective of the length of permission required but the cost of the immigration health surcharge is different based on the length of leave requested. The applicant will have paid the relevant immigration health surcharge cost at point of application.
  • Only children and young people are entitled to choose the duration of leave under the private life rules. The Immigration Health Charge portal will allow any applicant in the UK applying on the private or family life routes to select the duration of their leave.
  • If the applicant has requested 60 months leave but they are not entitled (as they are not a child or young person who met the half of life test or were not a child or young person who met the half of life test when first granted leave on the private life route), they are entitled to a refund of a proportion of the immigration health surcharge. The applicant only needs to pay the Immigration Health Charge for the period of leave they are granted.
  • If a child or young person has selected that they would like 60 months leave on the application form but has only paid the immigration health surcharge fee for 30months, the Home Office decision-maker will write out to ask the applicant to make an immigration health surcharge top-up payment within 2 weeks in order to be granted 60 months. If they do not make the payment within the 2 weeks, they should be granted 30 months leave.
  • Family life applicants pay the immigration surcharge (or are given a fee waiver) for 30 months permission to stay. If a child is to be granted leave on the private life route, the decision-maker will write out to inform the applicant that they are eligible for 60 months and ask them for an immigration health surcharge top-up payment in order to be granted 60 months. If they do not make the payment within the 2 weeks, they should be granted 30 months leave.

Settlement for young adults:

Appendix Private Life provides as follows in relation to a young adult meeting the qualifying period requirement for settlement:

“Qualifying period requirement for settlement on the Private Life route(where the applicant was not born in the UK)

PL 14.1. An applicant who has, or last had, permission to stay on the private life route as a ……young adult who met the half-life test under PL 4.1, must have lived in the UK for a continuous qualifying period of 5 years with permission as set out in PL 14.3 or 14.4”.

THE 20YEAR RULE AND LESS THAN 20YEARS RESIDENCE REQUIREMENTS

Residence requirements and periods of grant of permission to stay-20year Rule and less than 20years residence:

Appendix Private Life states:

“Eligibility requirements on the Private Life route

……………

Residence requirements for an adult on the Private Life route (including a young adult who does not qualify under PL 4.1.)

PL 5.1. Where the applicant is aged 18 or over on the date of application:

(a) the applicant must have been continuously resident in the UK for more than 20 years; or

(b) where the applicant has not been continuously resident in the UK for more than 20 years, the decision maker must be satisfied there would be very significant obstacles to the applicant’s integration into the country where they would have to live if required to leave the UK”.

………..

“Period and conditions of grant of permission to stay on the Private Life route

…………

PL 10.3. In all other cases the applicant will be granted 30 months permission to stay”.

Adults granted permission to stay under the private life rules can settle after 10 years continuous residence and permission will initially be granted for 30 months.

  • The Private Life Guidance provides at pages 20 to 23:
  • An applicant over 18 years of age, who does not meet the half-life test, must have lived continuously in the UK for at least 20 years at the date of application.
  • Where an adult applicant has been resident in the UK for less than 20 years (and is not a young adult who meets the half of life test) there must be very significant obstacles to the applicant’s integration into the country where they would have to live if required to leave the UK in order for them to qualify under the private life route.

If the applicant is over 18 but arrived in the UK as a child (and does not meet the half of life in the UK test) then an assessment of whether there are very significant obstacles to integration in the country in which they might have to live if required to leave the UK will be necessary. In these cases, the Home Office will consider if the individual has lived in that country as an adult which will mean spending a period of employment or study in that country, or other activities consistent with living there as an adult.

Settlement: 20year rule or less than 20years residence:

Appendix Private Life states:

Qualifying period requirement for settlement on the Private Life route (where the applicant was not born in the UK)

……………

PL 14.2. An applicant who is aged 18 or over at the date of application and does not meet the requirement in PL 14.1 must have lived in the UK for a continuous qualifying period of 10 years with permission set out in PL 14.3. or 14.4”.

CONDITIONS ATTACHED TO PERIODS OF PERMISSION TO STAY

Conditions of grant of permission to stay:

Appendix Private Life states:

“Period and conditions of grant of permission to stay on the Private Life route

……………….

“PL 10.5. The grant of permission will be subject to the following conditions:

(a) work (including self-employment and voluntary work) permitted; and

(b) study is permitted, subject to the ATAS condition in Appendix ATAS; and

(c) if the decision maker is satisfied that:

(i) the applicant is destitute, as defined in section 95 of the Immigration and Asylum Act 1999, or is at risk of imminent destitution; or

(ii) there are reasons relating to the welfare of a relevant child which outweigh the considerations for imposing or maintaining the condition (treating the best interests of the relevant child as a primary consideration), the applicant will not be subject to a condition of no access to public funds. If the decision maker is not so satisfied, the applicant will be subject to a condition of no access to public funds; and

(d) if Part 10 of these rules applies, the applicant will be required to register with the police.

PL 10.6. For the purposes of PL 10.5.(c)(ii) ‘relevant child’ means a person who:

(a) is under the age of 18 years at the date of application; and

(b) it is clear from the information provided by the applicant, is a child who would be affected by a decision to impose or maintain the no access to public funds condition.”

  • Persons granted permission to stay on the basis of private life can take any kind of employment or self-employment. The work can be full-time or part-time, paid, or unpaid and they do not need any additional permission or endorsement from the Home Office to work.
  • Subject to the ATAS condition below, persons granted permission to stay on the basis of private life are allowed to study in the UK. There is no limit on the number of hours they can study or level of course they can do.
  • If the person intends to study a discipline listed in Immigration Rules: Appendix ATAS and they are not a national of an exempt country, they must obtain an Academic Technology Approval Scheme (ATAS) clearance certificate from the Counter-Proliferation and Arms Control Centre of the Foreign, Commonwealth and Development Office in relation to this course before beginning their study.
  • If the applicant has provided the Home Office satisfactory evidence they are destitute or at risk of imminent destitution, or satisfactory evidence that there are reasons relating to the welfare of a relevant child, or satisfactory evidence that there are exceptional circumstances relating to the applicant’s financial circumstances which requires the Home Office decision-maker not to impose a condition of no recourse to public funds, the applicant can be granted access to public funds. Otherwise, permission to stay is granted with no access to public funds.
  • A person who is granted permission to stay on the basis of private life may be required to register with the police if required under Part 10 of the Immigration Rules – the Police registration guidance provides further information.

CONSIDERATIONS OUTSIDE THE IMMIGRATION RULES- ARTICLE 8 OF THE ECHR ON PRIVATE LIFE

Appendix Private Life states:

“Eligibility requirement for Private Life route relying on Article 8 of the Human Rights Convention

PL 8.1. If the applicant does not meet the suitability requirements (subject to PL 8.2) or does not meet any of the eligibility requirements in PL 3.1., PL 4.1. or PL 5.1. the decision maker must be satisfied that refusal of permission to stay would breach Article 8 of the Human Rights Convention on the basis of private life.

PL 8.2. Where PL 8.1. applies and the applicant falls for refusal under suitability paragraphs S-LTR.1.2., S-LTR.1.3., S-LTR.1.4., S-LTR.1.5., S-LTR.1.6 or S-LTR 1.8. of Appendix FM of these rules the application on the Private Life route will be refused”.

The Private Life Guidance states at pages 27 to 31:

  • If the applicant does not meet the suitability requirements (see Grounds for refusal – suitability) or the eligibility requirements for a child, young person or adult, the Home Office will consider whether refusal would breach Article 8 (the right to respect for private and family life) of the ECHR on the basis of private life.
  • In conducting this assessment, regard will be given to all of the information and evidence provided by the applicant. The Home Office are required take into account, as a primary consideration, the best interests of a relevant child.
  • The Home Office will consider whether refusal would result in a harsh outcome(s) for the applicant, 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.
  • The impact on the applicant if the application is refused is required to be considered and an assessment made as to whether this produces an unduly harsh outcome when the factors are taken into account. It is expected that an individual applying on their own under the Private Life rules will be assessed on that basis without wishing for the impact on family life or family members to be taken into account.
  • If family members are included in the application, then the other family members must be taken into account and the application considered so as to produce the same result as if considered under GEN.3.2. of Appendix FM.
  • Cumulative factors will be considered. Cumulative factors weighing in favour of the applicant should be balanced against cumulative factors weighing in the public interest in deciding whether refusal would breach Article 8 for the applicant.
  • The Home Office must take into account, as a primary consideration, the best interests of any ‘relevant child’. A ‘relevant child’ is a child in the UK or overseas, who is under the age of 18 years at the date of application, and who it is evident from the information provided by the applicant would be affected by a decision to refuse the application.
  • The Supreme Court determined, in ZH (Tanzania) [2011] UKSC 4, that the ‘best interests of the child’ broadly means their well-being and that in undertaking a proportionality assessment under Article 8 those best interests must be a primary consideration. However, they are not necessarily determinative, and they can be outweighed by public interest considerations. The Court also noted that while British citizenship is not a ‘trump card’, it is of particular importance in assessing the best interests of a child.
  • In FZ (Congo) [2013] UKSC 74, the Supreme Court said: “…The best interests of a child are an integral part of the proportionality assessment under Article 8 of the Convention; in making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of paramount consideration…”.
  • In considering the best interests of a relevant child as a primary consideration within the Article 8 decision-making process, what matters is the substance of the attention given to the overall well-being of the child, not the specific order in which the elements of the consideration take place.
  • It is also essential that the child is not blamed for any failure by their parent or parents to comply with UK immigration controls. The conduct or immigration history of their non-British citizen parent or parents is relevant to the public interest analysis and must be given due weight in determining the overall proportionality of the decision under ECHR Article 8, but it does not affect the assessment of the child’s best interests or the need for those best interests to be taken into account as a primary consideration in the Article 8 decision.

In relation to the assessment of a child’s best interests, this requires a consideration of all relevant factors in the particular case. The Home Office decision-maker will consider:

  • the child’s length of residence in the UK
  • the family circumstances in which the child is living
  • the child’s relationships with their parent or parents overseas and in the UK
  • how long the child has been in education and what stage their education has reached
  • the child’s health
  • the child’s connection with the country outside the UK in which their parents are, or one of their parents is, currently living or where the child is likely to live if their parents leave the UK
  • the extent to which the decision will interfere with, or impact on, the child’s family or private life
  • whether (and, if so, to what extent) the child will have linguistic, medical, or other difficulties in adapting to life in that country
  • whether there are any factors affecting the child’s well-being which can only be alleviated by the presence of the applicant in the UK what effective and material contribution the applicant’s presence in the UK would make to safeguarding and promoting the child’s well-being. Is this significant in nature?
  • support during or following a major medical procedure, especially if this is likely to lead to a permanent change in the child’s life.

The Private Life Guidance further provides at page 32:

  • If the applicant meets the suitability requirements of PL.8.2. and the eligibility requirements on residence, the applicant will be granted permission to stay.
  • If the applicant does not meet the suitability requirements at 9.6.1 of Part 9 S-LTR 1.7, S-LTR 2.2, S-LTR 3.1 to S-LTR 4.5 of Appendix FM or does not meet the eligibility requirements on residence but refusal would breach Article 8 under PL 8.1, the applicant will be granted permission to stay.
  • Children and young people being granted permission on the private life route following a private life claim for which no application was required, will be granted leave for 60-months. Children and young people will be on a 5-year route to settlement.

VALIDITY REQUIREMENTS- SETTLEMENT APPLICATIONS

Appendix Private Life states:

“Validity requirements for settlement on the Private Life route

PL 11.1. A person on the Private Life route who is applying for settlement must apply online on the gov.uk website on the specified form as follows:

Adult (aged 18 or over) Settlement on the private life route
Child (aged under 18) Settlement as a child (including a child aged over 18 already in the UK as a dependent)

PL 11.2. An application for settlement must meet all the following requirements:

(a) any fee must have been paid; and

(b) the applicant must have provided any required biometrics; and

(c) the applicant must have provided a passport or other travel document which satisfactorily establishes their identity and nationality; and

(d) the applicant must be in the UK on the date of application.

PL 11.3. An applicant must have, or have last been granted, permission on the Private Life route, unless they are a child who was born in the UK.

PL 11.4. An application which does not meet all the validity requirements for settlement on the Private Life route is invalid and may be rejected and not considered”.

ROUTES COUNTING TOWARDS PERIODS OF SETTLEMENT

Routes counting towards the qualifying period of settlement:

Appendix Private Life states:

“PL 14.3. Permission on the following routes (or any combination of those routes) counts towards the qualifying period in PL 14.1. or PL 14.2:

(a) entry clearance or permission granted as a partner or parent under Appendix FM (except for permission as a fiancé(e) or proposed civil partner); or

(b) permission described in the Home Office grant letter as “family permission as a parent” or “family permission as a partner”; or

(c) permission on the private life route under paragraph 276ADE or 276BE(2) before 20 June 2022 or Appendix Private Life; or

(d) entry clearance or permission as a child of a person with limited leave as a partner or parent under Appendix FM; or

(e) permission granted outside the rules as a partner, a parent or child or because of private life on the basis of Article 8 of the Human Rights Convention.

PL 14.4. Permission on any other route that includes rules allowing an applicant to qualify for settlement also counts towards the qualifying period in PL 14.1. or PL 14.2, if the applicant:

(a) did not enter the UK illegally (unless they have permission to stay on the private life route as a child or young adult); and

(b) has had permission either under paragraph 276ADE or 276 BE(2) before 20 June 2022 or Appendix Private Life for at least one year at the date of application”.

7YEARS CONTINUOUS RESIDENCE: SETTLEMENT FOR CHILDREN BORN IN THE UK

Children born in the UK who have accrued 7years continuous residence:

Appendix Private Life states:

“Eligibility requirements for settlement on the Private Life route

Child born in the UK requirements for settlement on the Private life route

PL 13.1. The applicant must have been born in the UK and must provide a full UK birth certificate.

PL 13.2. The applicant must have lived continuously in the UK since their birth and for at least 7 years at the date of application.

PL 13.3. The decision maker must be satisfied that it is not reasonable to expect the applicant to leave the UK”.

A child born in the UK who has been continuously resident in the UK for at least 7 years is eligible to apply for immediate settlement on the basis of private life.

PRIVATE LIFE AND CONTINUOUS RESIDENCE

Continuous residence for limited leave

Appendix Private Life provides:

Continuous Residence requirements on the Private Life route

PL 7.1. The period of continuous residence at PL 3.1, PL 4.1. or PL 5.1. may include time spent in the UK with or without permission.

PL 7.2. The period of continuous residence at PL 3.1, PL 4.1. or PL 5.1. does not include any period during which the applicant was serving a sentence of imprisonment.

PL 7.3. The period of continuous residence at PL 3.1, PL 4.1. or PL 5.1 is broken (i.e. is no longer continuous) if any of the following apply:

(a) the applicant has been absent from the UK for more than 6 months at any one time; or

(b) the applicant has spent a total of 550 days or more absent from the UK during the period of continuous residence at PL 3.1, PL 4.1 or PL 5.1; or

(c) the applicant has been removed, deported or has left the UK having had an application for permission to enter or stay in the UK refused; or

(d) the applicant left the UK with no reasonable expectation at the time of leaving that they would lawfully be able to return”.

The Private Life Guidance states at pages 25 to 26:

  • Continuous residence for permission to stay on the private life route means time spent in the UK for an unbroken period and includes time spent in the UK with or without permission.
  • The Home Office will check when the applicant arrived in the UK and how long they have been living in the UK.
  • Time spent in prison will not be counted towards the period of continuous residence, but time before and after that imprisonment can be counted. The decision-maker will check to see whether the applicant has a criminal history and, if so whether they have been sentenced to a period of imprisonment.
  • The applicant is asked to list any absences in the Immigration History section of the application form. The Home Office will check the copy of the applicant’s documentation such as passport pages or travel documents for a record of absences to see if the evidence supports the information on the application form.
  • If the applicant has not listed all the dates of absence on the form but the passport evidence or other records to demonstrate they were absent, the decision-maker must ask for more information to clarify this discrepancy.
  • To demonstrate length of residence in the UK, applicants will be asked to provide documentary evidence as part of the application form.
  • There is no specified evidence to show continuous residence and a Home Office decision-maker cannot refuse an application for a lack of a particular document but must consider where they are overall satisfied that the applicant has been continually resident for the relevant period.
  • There is also no set number of documents required to show continuous residence and the evidence submitted will depend on the circumstances of the applicant.
  • The Home Office will consider the information on the application form and other available evidence before deciding whether they are satisfied that the continuous residence requirement is met. Official documentary evidence from official or independent sources, that shows ongoing contact over a period of time, will be given more weight in the decision-making process than evidence of one-off events.

The private life Guidance provides a non-exhaustive list of evidence that may be submitted by an applicant to show continuous residence in the UK. The list is not in order of importance:

  • tenancy agreement, mortgage agreement, letter from landlord, documents of ownership deeds or letter from housing trust
  • temporary work contracts or employment letters
  • letter from a local authority – contact with child or school placements
  • utility bills – council tax, electricity, gas, water etc
  • other bills – phone, TV licence, cable etc
  • other dated UK addressed domestic bills – for example, veterinary bills or home services/repairs
  • bank statements
  • study course documents
  • letters from school or charitable organisations

Although the burden of proof is on the applicant, if they have not yet provided sufficient evidence, the decision-maker is required to consider whether they should ask the applicant for further information, or they can seek to verify evidence before deciding the application.

If evidence is missing or inadequate, but the decision-maker does not need the information because they can get it elsewhere, for example, from a previous application, they do not need to contact the applicant.

If evidence is missing or inadequate but receiving it would make no difference to the decision (for example because they would still be refused for other reasons) the decision-maker does no need to contact the applicant.

If the evidence is missing or inadequate and the Home Office consider receiving it would make a difference to the decision, they should consider asking for further information or making verification checks. For example, the decision-maker may want to ask for evidence in the following situations:

  • evidence is missing that the Home Office believe the applicant has or could obtain
  • evidence is inadequate but could be clarified

The decision-maker may decide to ask for further information from the applicant or make verification checks. For more information, the Evidential flexibility guidance applies.

Continuous residence for settlement applications:

Appendix Private Life states:

“Continuous Residence requirement for settlement on the Private Life route

PL 15.1. The applicant must meet the continuous residence requirements as set out in Appendix Continuous Residence for the qualifying period for settlement”.

Appendix Continuous Residence applies only to certain types of applications including Appendix Private Life (settlement only).

Appendix Continuous Residence provides as follows as regards how the continuous residence requirement is met:

“CR 1.1. The continuous residence requirement is met if the applicant has spent the qualifying unbroken continuous residence period required by their route lawfully in the UK”.

Absences from the UK are dealt with between CR 2.1. and CR 2.5 of Appendix Continuous Residence, with CR 2.1. and CR 2.5, stating:

“CR 2.1. To meet the continuous residence requirement the applicant must not have been outside the UK for more than 180 days in any 12-month period (unless CR 2.2. or CR 2.3 applies).

……………….

“CR 2.5 Absences before 20 June 2022 will not be counted when calculating the continuous residence period for settlement applications under Appendix Settlement Family Life if the applicant was subsequently granted permission as a partner or parent under Appendix FM or under paragraph 276ADE or 276BE(2), following those absences”.

CR 4.1. sets out when an applicant’s continuous residence period will be broken.

CR 5.1. provides for when an applicant will not be regarded as lawfully present in the UK under CR 1.1.

CR 6.1. sets out how continuous residence periods in CR 2.1 and CR 2.2. will be calculated.

SETTLEMENT AND THE ENGLISH LANGUAGE REQUIREMENT

Appendix Family life states:

“English language requirement for settlement on the Private Life route

PL 16.1. Unless an exemption applies (for example where the applicant is aged under 18), the applicant must show English language ability on the Common European Page 180 of 202 Framework of Reference for Languages in speaking and listening to at least level B1.

PL 16.2. The applicant must show they meet the English language requirement as specified in Appendix English Language”.

SETTLEMENT AND KNOWLEDGE OF LIFE IN THE UK

Appendix Family life states:

Knowledge of life in the UK requirement for settlement on the Private Life route

PL17.1. Unless an exemption applies (for example where the applicant is aged under 18), the applicant must meet the Knowledge of Life in the UK requirement as specified in Appendix KOL UK”.

DEPENDANT CHILD BORN IN THE UK TO A PERSON ON THE PRIVATE LIFE ROUTE

Appendix Private Life and the Private Life guidance provide for consideration and assessment of an application for permission to stay as a dependent child born in the UK to a person on the private life route.

  • The validity requirements are set out in paragraphs PL 19.1. to PL 19.5. of Appendix Private Life.
  • The suitability requirements for dependent children born in the UK to a person on the Private Life route are set out in paragraphs PL 20.1. and PL 20.2 of Appendix Private Life.
  • The applicant is required to meet the relationship requirements in paragraphs PL 21.1. and PL 21.2.
  • If the applicant meets all of the suitability and eligibility requirements the applicant must be granted permission to stay.
  • The applicant will be granted permission to stay which ends on the same date as whichever of their parents’ permission ends first.
  • If the applicant’s other parent is a British citizen or a person who has a right to enter or stay in the UK without restriction and is or will be ordinarily resident in the UK, the applicant will be granted permission to stay which ends on the same date as the parent on the Private Life route.
  • If the applicant does not meet all the suitability and eligibility requirements, the application on the private life route will be refused. The applicant will not be considered against the main private life rules if falling for refusal as a dependent child born in the UK

 

Young adult obtains an early grant of ILR under the new Concession

A young adult applicant who was on the private life 10year route to settlement and due to apply for indefinite leave to remain in May 2023, has today been granted settlement. This is by reference to the new Home Office Concession, the “Concession to the family Immigration Rules for granting longer periods of leave and early indefinite leave to remain”, introduced on 25 October 2021.

An analysis of the Concession is set out in a previous blog post: Young adults (aged 18 or above and under 25 years) and the new early ILR concession: The good and the not so good | UK Immigration Justice Watch Blog

Background:

An application to extend leave to remain as a young adult on the private life route was submitted in August 2021. Following publication of the Concession, representations relying on it were emailed to the Home Office on 3 November 2021. Indefinite leave to remain was granted on 24 November 2021.

Representations and Applicant’s Statement:

The contents of a full detailed Subject Access Disclosure obtained previously assisted very much in the formulation of a supportive 7page statement(and representations) seeking to provide clarity to the following:

  • applicant’s full historical immigration background:- from 2002 when she arrived in the UK as a child aged 5years, with her mother on a visit visa.
  • the mother’s immigration background:- efforts made by the mother to regularise their immigration status from 2012 until grant of leave in 2013( relying on the 7years rule).
  • it was no fault of the applicant that she remained in the UK between 2002 and 2013 without leave. In fact, the entirety of the period of unlawful residence in the past was the result of non-compliance, not on her part but her parent whilst the young adult was under the age of 18.
  • how following grant of leave, the applicant sought to timely extend her leave to remain
  • the applicant having turned 18years of age, her mother encouraged and supported her to take responsibility for her immigration matters and engage with the same legal Representative, who from 2012 had sufficient familiarity of their case and had assisted in regularising their status
  • how the applicant met the criteria within the newly published Concession
  • why holding only limited leave to remain had a detrimental impact upon the applicant
  • it is not proportionate for the applicant to serve a longer probationary period via the 10year route before qualifying for settlement.

Detailed  relevant extracts from past written representations I made for the applicant’s mother in 2012  as well as Home Office Case Notes during the period when the family were yet to regularise their status were included with the request under the Concession.

Basis of grant:

The email of 24 November 2021, accompanying the grant letter provides:

“This message is to confirm that your clients application for leave has now been decided and the decision is attached to this email.

After careful consideration, it is considered that you meet the concession to the family Immigration Rules for granting longer periods of leave and early indefinite leave to remain. The relevant guidance can be viewed here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1028126/Concession_on_longer_periods_of_leave_and_ILR.pdf

The grant letter states;

“On 20 August 2021 you applied for leave to remain on the basis of your Private Life in the UK.

From the information you have provided with your application, we have decided that you meet the criteria for consideration under the concession to the family Immigration Rules for granting longer periods of leave and early indefinite leave to remain. Guidance on this concession can be found on Gov.uk.

Under this concession, consideration has been given to the individual facts of your case, the public interest and the best interests of any affected children in accordance with our duty under Section 55 of the Borders, Citizenship and Immigration Act 2009.

We have decided that you have demonstrated that you meet the criteria of the concession and as such, you have been granted indefinite leave to remain outside the rules.

What this means for you Full details on your grant of indefinite leave to remain can be found in the enclosed/attached information letter”.

Young adults (aged 18 or above and under 25 years) and the new early ILR concession: The good and the not so good

The Private Life category has never provided for a 5year route to settlement.

However, a freshly published new Concessionary Guidance now does.  It does so by reference to a tightly defined group of eligible persons.

The Guidance.(Concession to the family Immigration Rules for granting longer periods of leave and early indefinite leave to remain Version 1, 21 October 2021), applies to all decisions made from 20 October 2021.

WHAT IS THE 5YEAR OR 10YEAR ROUTE TO SETTLEMENT? 

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

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.

Family life as a Partner:

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

Family life as a Parent:

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

Private life

The 10-year route is for:

  • those who meet all private life suitability and relevant eligibility requirements under Part 7 Paragraph 276ADE(1)
  • those who have exceptional circumstances

PRIVATE LIFE AND YOUNG ADULTS: WHAT IS THE POSITION UNDER THE IMMIGRATION RULES?

Prior to the new Immigration Rules being introduced on 9 July 2012, a published Statement of Intent: Family Migration, June 2012 provided as follows:

“PRIVATE LIFE

58.The Immigration Rules will provide a basis on which a person without family life can remain in the UK through long residence and social integration in the UK, consistent with the approach of Strasbourg and UK case law in this area. Those here lawfully for 10 years will continue to be able to qualify for settlement if they meet the requirements (under paragraph 276B(i)(a) of the Immigration Rules). The current 14 year long residence route to settlement for those in the UK lawfully or unlawfully will be abolished (paragraph 276B(i)(b)).

61.An applicant for leave to remain in the UK on the basis of private life must apply on the correct form and pay the relevant application fee. If they qualify, they will enter a 10 year route to settlement, consisting of four periods of 30 months’ leave to remain, plus a fifth application for indefinite leave to remain, if they qualify for it. Once on the route, applicants will have to make an application, on the correct form and paying the relevant application fee, at each further leave stage and for indefinite leave to remain.

62.To qualify for indefinite leave to remain after 10 years, an applicant must:

  • Have no unspent convictions; and
  • Demonstrate a knowledge of language and life in the UK by passing the Life in the UK test and by presenting a speaking and listening qualification at intermediate level (Common European Framework of Reference level B1) or above”.

Paragraph 276ADE(1) provides the requirements to be met for those applying on the basis of private life:

“Requirements to be met by an applicant for leave to remain on the grounds of private life

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”.

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 paragraph 276BE(1) of Part 7 of the Immigration Rules, on a 10-year route to settlement.

Young adults(amongst others relying upon paragraph 276ADE(1)):

  • If not eligible for a fee waiver, are expected pay substantial Home Office application fees at each further leave stage(during the course of the 10years) and for indefinite leave to remain.
  • Unless exempt, upon applying for indefinite leave to remain, are required to demonstrate a knowledge of language and life in the UK by passing the Life in the UK test and by presenting a speaking and listening qualification at intermediate level (Common European Framework of Reference level B1) or above.

PRIVATE LIFE AND YOUNG ADULTS: REQUESTS FOR EARLY ILR UNDER THE CONCESSION

The new guidance sets out the early indefinite leave to remain (ILR) concessions made to the Immigration Rules for applicants, in particular young adults (aged 18 or above and under 25 years, as in the Private Life rules), seeking leave based on their private life under Part 7 of the Immigration Rules. These are applicants who may have entered the UK as minors and have since been granted leave on a 10-year route to settlement either within or outside of the family and private life rules.

Special provision has therefore been made for young adults. This is on the basis that:

“…… for some cases the public interest factors which underpin the 10-year settlement policy – namely, the need to serve a longer probationary period before qualifying for settlement, and the principle of encouraging lawful compliance – may be less relevant. In particular, this may be the case for those applicants who were either born in the UK or entered as children (below the age of 18), but are now young adults (aged 18-24), who cannot be considered responsible for any previous non – compliance with immigration laws and are fully integrated into society in the UK. For these individuals it will not usually be proportionate to expect them to have to complete a longer (10-year) route to settlement. Where that is the case, they should be able to settle after 5 years’ continuous leave”.

Eligibility criteria for ILR under the Concession:

To be eligible to be considered under the concession, an applicant must (at the date of application):

  • Be aged 18 years or above and under 25 years of age and has spent at least half of his/her life living continuously in the UK (discounting any period of imprisonment);
  • Have either been born in or entered the UK as a child;
  • Have held five years limited leave; and
  • Be eligible for further leave to remain under paragraph 276ADE(1) of the Immigration Rules and have made an application under those rules.

A balancing of factors and the public interest factors:

Where an applicant meets the above criteria and requests an early grant of ILR the following factors are expected to be considered by the decision-maker:

These include (but are not limited to) the following:

  • the person’s age when they arrived in the UK
  • the length of their residence in the UK (including unlawful residence)
  • the strength of their connections and integration to the UK
  • whether unlawful residence in the past was the result of non-compliance on the part of the applicant or their parent/guardian whilst the applicant was under the age of 18
  • efforts made to engage with the Home Office and regularise status
  • any leave currently held and length of continuous lawful leave
  • any period of any continuous leave held in the past
  • whether (and the extent to which) limited leave to remain will have a detrimental impact on the person’s health or welfare

When considering these factors, decision makers are required to weigh the individual facts of each case against the public interest factors mentioned above (at page 4 of the Guidance): the need for 10-year route applicants to serve a longer probationary period before qualifying for settlement, and the principle of lawful compliance.

For all other applications outside the criteria for longer periods of leave or ILR the existing policy remains in place( the Family Policy, Family life (as a partner or parent), private life and exceptional circumstances) and applicants will be required to demonstrate particularly exceptional or compelling reasons to grant leave for a longer period or ILR.

A CRITIQUE

Some benefits:

It matters very much whether an individual is on a 5year or 10year route to settlement.

On the face of the Concession:

  • there is no need for an individual to submit more than one extension application following the initial 30months leave before becoming eligible for indefinite leave to remain
  • significant savings can be made in relation to providing for Home Office application fees at each stage of application extension. Currently, £2612.20 is required per applicant in relation to an extension of leave application (Home Office application fee and the NHS Surcharge).
  • Applying for naturalisation as a British citizen comes much sooner

It seems the requisite past five years limited leave could have been accrued either as a result of:

  • a grant under Paragraph 27ADE(1): i.e, the 7year Rule( Paragraph 27ADE(1)(iv) or as a young adult(Paragraph 27ADE(1)(v)
  • a grant under the family life provisions in relation to Appendix FM
  • a grant arising from exceptional circumstances

Relevant criteria is required to be met at the date of application:

Individuals seem not eligible under the Concession if an application for indefinite leave to remain is made before having held 5years limited leave –  all the relevant criteria is required to be met at the date of application.

The point at which consideration will be given to eligibility under the Concession seems to be when an application for further leave has been submitted.  Considering that an application for limited leave to remain(£2612.20) costs more than a settlement application( £2,389, excluding the £19.20 for the biometrics enrolment fee), no actual savings are being made.

Children under 18 cannot rely on the early ILR concession:

It is clear that the Concession does not apply to children under the age of 18. The rationale for this is provided for within the Concession Guidance:

“For children aged under 18, the current Private Life rule will still apply as in their case the circumstance of having spent time in the UK as a child but now having to apply as an adult does not apply. In their case the presumption is that they are seeking to live in the UK as dependents of their parents. Similarly, the concession does not apply to children and young adults when the parent, guardian or family member on whom they are dependent is applying, or is eligible to apply, under Appendix FM. They can be expected to continue to be granted leave in line with their parent, guardian or family member on who they are dependent”.

Exclusion from ILR  under the Concession of applicants now over 25 initially granted leave as young adults:

For some reason it was thought best to introduce a Concession rather than amend Paragraph 276ADE(1).

There are therefore now two different avenues by which young adults can seek to apply for indefinite leave, ie the 10year route via the Immigration Rules or the 5year route via the new Concession.

There seems to be no definition of “young adults” within Paragraph 6 of the Rules however Paragraph 276ADE(I)(v) itself is stated to apply only to applicants aged 18 years or above and under 25 years who have spent at least half of their life living continuously in the UK.

The Concession also requires that applicants for early ILR be aged 18 years or above and under 25 years of age.

On this basis, the Concession seems to exclude from its ambit, those young adults who previously applied under Paragraph 276ADE(1)(v) whilst under the age of 25 but on applying for further leave are now over this age. Such persons however should, absent adverse factors such as criminality, continue to be granted an extension of leave of 30month under the 10year route having regard to Paragraph 276BE(1), which states:

“Leave to remain on the grounds of private life in the UK

276BE(1). Limited leave to remain on the grounds of private life in the UK may be granted for a period not exceeding 30 months provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE(1) are met or, in respect of the requirements in paragraph 276ADE(1)(iv) and (v), were met in a previous application which led to a grant of limited leave to remain under this sub-paragraph. Such leave shall be given subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition”.

The restriction of the relevant eligible group to those aged between 18 and 24 within the concession is calculatedly deliberate. It excludes from its scope many applicants now aged 25 and over who were initially granted leave to remain based on Paragraph 276ADE(1)(v).

Grant of ILR will not necessarily follow even if the eligibility criteria is met:

It is not the case that a grant of ILR will follow where the relevant criteria is met and some applicable factors fall in an applicant’s favour.  A balancing exercise will be carried out. The Concession Guidance itself is clear that a period longer than 30months may be granted or ILR:

“Where one or a combination of these factors (at page 6) apply, a decision maker should consider the claim in the round and whether it remains proportionate to expect the applicant to have to complete a longer (10-year) route to settlement. Taken together, these factors may form a particularly exceptional or compelling reason to grant leave for a period longer than 30 months or ILR.

For example, where an applicant can show that they have held 5 years’ limited leave and that previous non-compliance with immigration requirements was not of their own choice or responsibility, because their overstaying was as a child or young adult under the age of 25, it may be appropriate to grant ILR on an exceptional basis”.

On the above basis, an applicant might find they are granted not ILR or 30months but a further extension of 3years leave instead( on top of the minimum 5yers already required to be accrued before the rest of criteria is  met).

Preparing an early request for ILR:

Applications by young adults placing reliance upon Paragraph 276ADE(1)(v), absent adverse history, are fairly straight forward to prepare. An effective easy flowing immigration background as well as sufficient amount of relevant documentary evidence as regards continuity and length of residence will usually suffice. However, applications by young adults requesting early ILR under the Concession will require much more considerable effort and thought.

Having regard to the factors that may be considered, there will be a need to set out within representations a detailed accurate chronology of events as regards the applicant’s past immigration history including that of those the applicant might have previously been dependant upon.

Representations which accompanied past leave applications will need to be in sight.

A Subject Access Request may also need to be made well prior to submission of an application which seeks to place reliance upon the Concession.

A statement prepared for the applicant may need to be provided addressing matters within their knowledge such as whether unlawful residence in the past was the result of non-compliance on their part or their parent/guardian whilst the applicant was under the age of 18, the efforts made to engage with the Home Office and regularise status and whether limited leave to remain will have a detrimental impact on the applicant’s health or welfare.

 

Upper Tribunal decides modified Paposhvili test applies to mental illness/risk of suicide cases

In MY (Suicide risk after Paposhvili) Occupied Palestinian Authority [2021] UKUT 232 (IAC) (23 August 2021), the Upper Tribunal made it clear from the outset that the appellant’s appeal was allowed on Article 3 health grounds, which was the determinative issue in the appeal.

The Headnote in MY states:

Where an individual asserts that he would be at real risk of (i) a significant, meaning substantial, reduction in his life expectancy arising from a completed act of suicide and/or (ii) a serious, rapid and irreversible decline in his state of mental health resulting in intense suffering falling short of suicide, following return to the Receiving State and  meets the threshold for establishing Article 3 harm identified at [29] – [31] of the Supreme Court’s judgment in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17[2020] Imm AR 1167, when undertaking an assessment the six principles identified at [26] – [31] of J v Secretary of State for the Home Department [2005] EWCA Civ 629[2005] Imm AR 409 (as reformulated in Y (Sri Lanka) v SSHD [2009] EWCA Civ 362) apply.

MY concerned an Appellant who claimed to be a citizen of the Occupied Palestinian Authority (OPA)(although the Secretary of State’s position was that he was Moroccan).  On 10 July 2014, he was convicted of robbery and ABH and was sentenced to 22 months’ imprisonment. He therefore became the subject of deportation proceedings and sought to resit deportation raising several claims, including that his deportation would breach his rights under Article 3 ECHR on the grounds of his mental illness.

Physical health condition cases and mental health condition cases:

In contrast to:

which involved physical health condition cases, MY (Suicide risk after Paposhvili) Occupied Palestinian Authority [2021] UKUT 232 (IAC) (23 August 2021) concerned a mental health psychiatric condition case.

As a question of law, issues concerning the application of Y (Sri Lanka) v SSHD [2009] EWCA Civ 362 and J v SSHD [2005] EWCA Civ 629[2005] Imm AR 409 following Paposhvili  and AM (Zimbabwe) were relevant for consideration.

J v SSHD  and  Y (Sri Lanka)  relate to psychiatric health cases.

The issue in MY before the Upper Tribunal was whether after AM (Zimbabwe), the N test continued to apply in cases involving the expulsion of a criminal with a psychiatric condition or whether the Paposhvili test applied.

What was the very high threshold test in N?

In N v United Kingdom (App. No. 26565/05), [2008] Imm AR 657 the Court clarified  what was meant by “exceptional circumstances”:

“42. In summary, the Court observes that since D v the United Kingdom it has consistently applied the following principles. Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.  In the D case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.

43.The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D v the United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.”

Following N claimants were required to demonstrate circumstances so exceptionally appalling that they reached the high threshold set in D: where the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.

The ‘deathbed’ scenario has now been held to set too high a threshold to properly reflect the values that Article 3 is designed to protect.

What is the Paposhvili test?

The Grand Chamber in Paposhvili v Belgium (App No. 41738/10), [2017] Imm AR 876, recast the test to be applied in Article 3 health cases.  It expressed the view in paragraph 182 that the approach to health cases should be clarified.  The court then stated as follows:-

“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.”

The Supreme Court decision in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17[2020] Imm AR 1167, sets out at paragraph 34:  ‘…..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 depart today’.

The Supreme Court in AM(Zimbabwe) further clarified:

“31. It remains, however, to consider what the Grand Chamber did mean by its reference to a “significant” reduction in life expectancy in para 183 of its judgment in the Paposhvili case. Like the skin of a chameleon, the adjective takes a different colour so as to suit a different context. Here the general context is inhuman treatment; and the particular context is that the alternative to “a significant reduction in life expectancy” is “a serious, rapid and irreversible decline in … health resulting in intense suffering”. From these contexts the adjective takes its colour. The word “significant” often means something less than the word “substantial”. In context, however, it must in my view mean substantial. Indeed, were a reduction in life expectancy to be less than substantial, it would not attain the minimum level of severity which article 3 requires. Surely the Court of Appeal was correct to suggest, albeit in words too extreme, that a reduction in life expectancy to death in the near future is more likely to be significant than any other reduction. But even a reduction to death in the near future might be significant for one person but not for another. Take a person aged 74, with an expectancy of life normal for that age. Were that person’s expectancy be reduced to, say, two years, the reduction might well – in this context – not be significant. But compare that person with one aged 24 with an expectancy of life normal for that age. Were his or her expectancy to be reduced to two years, the reduction might well be significant.

32.The Grand Chamber’s pronouncements in the Paposhvili case about the procedural requirements of article 3, summarised in para 23 above, can on no view be regarded as mere clarification of what the court had previously said; and we may expect that, when it gives judgment in the Savran case, the Grand Chamber will shed light on the extent of the requirements. Yet observations on them may even now be made with reasonable confidence. The basic principle is that, if you allege a breach of your rights, it is for you 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, set out in para 23(a) above, 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. But, irrespective of the perhaps unnecessary complexity of the test, let no one imagine that it represents an undemanding threshold for an applicant to cross. For 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. All three parties accept that Sales LJ was correct, 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). Indeed, as the tribunal proceeded to explain in para 123, the arrangements in the UK are such that the decisions 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”.

Insofar as the judgment in AXB v SSHD [2019] UKUT 397 relates to the procedural aspects arising from Paposhvili, what is stated at [112] (replicated at paragraph 3 of the headnote) was endorsed by the Supreme Court in AM(Zimbabwe) :-

“The burden is on the individual appellant to establish that, if he is removed, there is a real risk of a breach of Article 3 ECHR to the standard and threshold which apply.  If the appellant provides evidence which is capable of proving his case to the standard which applies, the Secretary of State will be precluded from removing the appellant unless she is able to provide evidence countering the appellant’s evidence or dispelling doubts arising from that evidence.  Depending on the particular circumstances of the case, such evidence might include general evidence, specific evidence from the Receiving State following enquiries made or assurances from the Receiving State concerning the treatment of the appellant following return.”

In respect of the obligations on the Secretary of State following Paposhvili, the Supreme Court  in AM(Zimbabwe) stated at [33] 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. The premise behind the guidance, surely reasonable, 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. What will most surprise the first-time reader of the Grand Chamber’s judgment is the reference in para 187 to the suggested obligation on the returning state to dispel “any” doubts raised by the applicant’s evidence. But, when the reader reaches para 191 and notes the reference, in precisely the same context, to “serious doubts”, he will realise that “any” doubts in para 187 means any serious doubts. For proof, or in this case disproof, beyond all doubt is a concept rightly unknown to the Convention”.

The six-point guidance in J v SSHD – suicide cases:

The J guidance, as formulated at paragraphs 26 to 32 states:

“26.First, the test requires an assessment to be made of the severity of the treatment which it is said that the applicant would suffer if removed. This must attain a minimum level of severity. The court has said on a number of occasions that the assessment of its severity depends on all the circumstances of the case. But the ill-treatment must “necessarily be serious” such that it is “an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment”: see Ullah paras [38-39].

27.Secondly, a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant’s article 3 rights. Thus in Soering at para [91], the court said:

“In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.”(emphasis added).

See also para [108] of Vilvarajah where the court said that the examination of the article 3 issue “must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka…”

28.Thirdly, in the context of a foreign case, the article 3 threshold is particularly high simply because it is a foreign case. And it is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities of the receiving state, but results from some naturally occurring illness, whether physical or mental. This is made clear in para [49] of D and para [40] of Bensaid.

29.Fourthly, an article 3 claim can in principle succeed in a suicide case (para [37] of Bensaid).

30.Fifthly, in deciding whether there is a real risk of a breach of article 3 in a suicide case, a question of importance is whether the applicant’s fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of article 3.

31.Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant’s claim that removal will violate his or her article 3 rights.

32.We were shown a number of cases which were declared inadmissible at Strasbourg: A.G v Sweden Appl No 27776/95; Kharsa v Sweden Appl No 28419/95; Nikovic v Sweden Appl No 28285/95; Ammari v Sweden Appl No 60959/00; Nasimi v Sweden Appl No 38865/02. The sixth factor which we have identified above was considered to be relevant in each of these cases. The fifth factor was considered to be an additional relevant factor in Kharsa, Ammari and Nasimi”.

The fifth point in J v SSHD was reformulated in  Y (Sri Lanka) where  the Court of Appeal stated: –

“15. … The corollary of the final sentence of §30 of J is that in the absence of an objective foundation for the fear some independent basis for it must be established if weight is to be given to it. Such an independent basis may lie in trauma inflicted in the past on the appellant in (or, as here, by) the receiving state: someone who has been tortured and raped by his or her captors may be terrified of returning to the place where it happened, especially if the same authorities are in charge, notwithstanding that the objective risk of recurrence has gone.

  1. One can accordingly add to the fifth principle in J that what may nevertheless be of equal importance is whether any genuine fear which the appellant may establish, albeit without an objective foundation, is such as to create a risk of suicide if there is an enforced return.”

Sir Duncan Ouseley in R (Carlos) v SSHD [2021] EWHC 986 (Admin) stated at [159]:

Article 3 and suicide risk: this is another facet to which Paposhvili and AM (Zimbabwe) apply.  It is for EC to establish the real risk of a completed act of suicide.  Of course, the risk must stem, not from a voluntary act, but from impulses which he is not able to control because of his mental state”.

Secretary of State attempts to persuade the Upper Tribunal in MY to apply the N test to psychiatric/mental health cases:

Whilst the appellant relied on AM (Afghanistan) v SSHD [2017] EWCA Civ 1123[2017] Imm AR 6, in relation to the Secretary of State’s submissions the following was noted:

  • that Paposhviliand AM(Zimbabwe) do not apply to mental health cases and that the N test applied.
  • while YJand Bensaid v United Kingdom 2001 ECHR 44599/98 relied on the application of the N threshold as opposed to the now modestly extended protection of AM(Zimbabwe), nonetheless in psychiatric cases the focus has always been on the treatment or lack of it in the receiving country and the impact that would have on the person.
  • The obligation is on the applicant to raise a “prima facie case” of potential infringement of Article 3.  The burden being on them to prove that there are substantial grounds for considering, that theirs is a very exceptional case because of a real risk of subjection to treatment, resulting from the foreseeable consequences of the removal [AM at [32]; [108] of Vilvarajah and Others v United Kingdom 1991 ECHR 13163/87].
  • The obligation on the authorities of a returning state dealing with a health case is primarily one of examining the fears of an applicant as to what will occur following return and assessing the evidence [AXBat [123]].
  • There is no freestanding obligation on a returning state to make enquiries to the receiving state concerning treatment or obtain assurances in that regard [AXBat [124]].  Once a prima facie case is established that in accordance with AM at [33] the Secretary of State is not obliged to dispel “any doubts” raised by the applicant’s evidence

On behalf of the Appellant it was argued as follows:

  • The Appellant suffers from severe depression, PTSD, generalised anxiety disorder and paranoid schizophrenia.  The Consultant forensic psychiatrist Dr Galappathie had confirmed that these conditions would have an impact on the Appellant’s memory and ability to recall past events, especially traumatic ones.  Careful and specific attention should be paid to every aspect of such medical report
  • In Savran v Denmark 2019 ECHR 57467/15, the majority decided that the decision in Paposhvili applies to mental health cases and nothing in AM(Zimbabwe) would suggest otherwise.
  • The appellant also relied on the case of R (Carlos) v SSHD.
  • There was no evidence that the Appellant is feigning illness, he was at a high risk of suicide and the test in AM(Zimbabwe) is met.  He relied on the evidence of Professor Joffe about the state of mental health services in OPA.  The Appellant’s current treatment in the UK is medication, he has follow-up appointments with his general practitioner. The test is as set out in Paposhvili and confirmed by the Supreme Court in AM(Zimbabwe).
  • The Tribunal must ask itself whether the appellant would face a real risk, on account of the absence of appropriate treatment in the receiving state or the lack of access to such treatment, of being exposed to (i) a serious, rapid and irreversible decline in his state of health resulting in intense suffering, or (ii) a significant, meaning substantial, reduction in life expectancy.  That this judgment applies to cases involving mental illness and risk of suicide has been confirmed by Sir Duncan Ouseley in R (Carlos) v SSHD.It is for the appellant to demonstrate that there are substantial grounds for believing that such a risk exists; after that point, the burden falls to the Secretary of State to “dispel any doubts raised by it”
  • Professor Joffé had described mental health treatment in the OPA as “dire” and pointed to “a desperate shortage of mental health specialists”.  Professor Joffé also described the availability of public health facilities for individuals with the appellant’s serious mental health disabilities to be “inadequate” and private facilities would not be affordable.
  • The correct test for mental health/suicide cases is now as set out in Paposhviliand confirmed by the Supreme Court in AM(Zimbabwe). This test, adapted to this particular context is whether there are substantial grounds for believing that the appellant would face a real risk on account of the absence of appropriate treatment in the receiving state or the lack of access to such treatment, of being exposed to: (i) a serious, rapid and irreversible decline in his state of his mental health resulting in intense suffering, or (ii)a significant, meaning substantial, reduction in his life expectancy arising from a completed act of suicide.
  • It is conceded by the Secretary of State that return to OPA would breach the UK’s obligations under Article 3.  Even the Secretary of State ’s own evidence entitled Report of the Home Office Fact-Finding Mission Occupied Palestinian Territories: Freedom of movement, security and human rights situation, described mental health in OPA as “a big concern” and as having “severe capacity gaps”

Upper Tribunal agrees the correct test is set out in Paposhvili as confirmed in AM(Zimbabwe):  J and Y subjective fear on return guidance is still valid:

The Upper Tribunal considered and concluded as follows as regards the applicable test:

  • The test to be applied in Article 3 health cases is that found at [183] in Paposhvili as explained by the Supreme Court in AM(Zimbabwe at [29] -31]; namely, whether the Appellant would face a real risk, on account of the absence of appropriate treatment in the receiving state or the lack of access to such treatment, of being exposed to (i) a serious, rapid and irreversible decline in his state of health resulting in intense suffering, or (ii) a significant, meaning substantial, reduction in life expectancy.
  • There is nothing in European or domestic case law to support any contention that Paposhvili does not apply to suicide cases. The Secretary of State accepts it applies.  That Paposhovili applies to cases involving mental illness and risk of suicide, was confirmed in Savran v Denmark and again recently by Sir Duncan Ouseley in Carlos.
  • Insofar as J and Y concern subjective fear on return, the guidance is still valid. There is nothing controversial about points 1-4  in J. What is stated therein has not been overtaken by AM(Zimbabwe).
  • There is no threshold test in either J or Y.  The 6 points made are not a test.
  • They amplify the test set under Article 3 in the light of (‘the Ntest’). Furthermore, the Secretary of State now accepts that the correct test is that in Paposhvili and AM(Zimbabwe).   The reformulation of point 6 by the Secretary of State is an attempt to create a threshold test which has no basis in law.
  • Points 5 and 6 in J give guidance on how to deal with subjective fear.  While the guidance specifically refers to suicide cases, this simply reflects the N  In order to reflect properly the applicable Paposhvili test, the guidance should now apply to mental health cases generally where fear is unfounded.
  • Moreover, the final sentence of point 5 in J is not an attempt to create any extra burden on the Appellant in a suicide (or mental health) case. The point made by the Court of Appeal in J must be considered in context. The Appellant in that case did not have psychosis or schizophrenia. He had PTSD from what had happened to him in Sri Lanka. There was treatment available in Sri Lanka to which the Appellant would have access because he had the support of family members.  Moreover, in Y, the Court of Appeal added to point 5 something of particular relevance to this appeal, namely that what may be of equal importance is whether any genuine fear which the appellant may establish, albeit without an objective foundation, is such as to create a risk of suicide if there is an enforced return.
  • The six points in J apply to mental health cases post Paposhvili. They do not impose a test or a burden on an appellant. They are guidance on how to deal with subjective fear.
  • The Appellant must adduce evidence capable of demonstrating that there are substantial grounds for believing that Article 3 will be violated. This can be explained as raising a prima facie case which means a case which in the absence of challenge would establish infringement.  It is a demanding threshold.  It is for the Appellant to demonstrate that there are substantial grounds for believing that such a risk exists; after that point, the burden falls to the Secretary of State to dispel any serious doubts raised by it (AM[33].)  While the Supreme Court rejected the submission that there is an obligation to dispel any doubts, they interpreted the decision of the Grand Chamber as intending to oblige the Secretary of State to dispel serious doubts.  The test is set out in Paposhvili and AM(Zimbabwe).

Upper Tribunal finds Appellant’s return to Morocco would breach the UK’s obligations under Article 3:

In allowing the Appellant’s appeal, the Upper Tribunal’s reasoning was as follows:

  • There was no meaningful challenge to the medical evidence before the Upper Tribunal. The Appellant had a history of significant mental illness. In 2015 he was assessed by Dr Clark as presenting a significant risk of suicide and as having a subjective belief that others wanted to kill him. A year later the Appellant was assessed by Dr Anderson, a Registered Consultant Clinical Psychologist, who assessed him to be at high risk of violence to himself. He said that his symptoms would diminish rapidly if managed appropriately.  The most recent medical evidence confirmed diagnoses of severe depressive episode, generalised anxiety disorder, PTSD and paranoid schizophrenia/psychosis and stated that he was at high risk of self-harm.  His symptoms were chronic.  He had a history of self-harm and took medication.  In the most recent medical evidence, Dr Galappthie, a consultant forensic psychiatrist, expressed a more pessimistic outlook than Dr Anderson about the Appellant’s prognosis even if he was allowed to remain in the UK (prospects for improvement were limited by the severity and long- standing nature of his mental health problems and underlying psychotic illness)
  • The Upper Tribunal attached weight to all the medical evidence.
  • It was accepted that the Appellant’s memory was impaired for the reasons identified in the medical evidence.
  • What the evidence before the Upper Tribunal clearly established was that the Appellant had been deeply traumatised by an event/events in his lifetime. He has always been consistent about having witnessed the murder of his family. The Upper Tribunal accepted this aspect of his evidence. The medical evidence established a clear link between past trauma/mistreatment and his mental illness.
  • Taking into account the evidence as a whole, including the Sprakab report, properly applying the lower standard of proof there was insufficient evidence that he was from OPA.  The Upper Tribunal found that the Appellant was Moroccan.
  • The Appellant did not have family who are in a position to help him in Morocco or anywhere.  The evidence pointed to the Appellant being very much alone in the world
  • The Appellant had a subjective fear that those who were responsible for killing his family pursued him to Turkey and continue to pursue him.
  • The Appellant was assessed as presenting a high risk of self-harm and suicide and that should he be forcibly removed to OPA or Morocco this was likely to lead to a worsening of his mental health and increased risk of self-harm and suicide. The medical evidence was that detention would lead to an acute psychotic relapse.  On return to OPA or Morocco the Appellant was likely to suffer from worsening psychotic symptoms and present with an immediate and high risk of self-harm and suicide.   It was significant that the medical evidence made no distinction between risk on return to OPA or Morocco.
  • The evidence was that the Appellant struggled to engage with health services when he was homeless. It was accepted that the Appellant as a result of trauma and psychosis/schizophrenia, hears voices telling him to kill himself.
  • The Appellant was at high risk of suicide. Moreover, he would not be able to engage with the limited health care available in Morocco to allay his fears.
  • His condition could not be described as medically stable. He was at high risk of self – harm and his condition was chronic.  His condition would deteriorate on removal to Morocco because the Appellant had a subjective fear that he was being pursued by the people responsible for his family’s death and heard voices telling him to kill himself.   He would arrive in Morocco alone, without support. He was likely to be destitute. He believed he was being pursued.  This must be considered in the context of him already presenting a high risk of self-harm.
  • The medication he received in the UK and visits to his GP had no doubt prevented the Appellant from making any recent attempts on his own life. Having accommodation was a feature that had helped him engage with mental health services. In respect of availability of medical treatment in Morocco, the Upper Tribunal attached weight to Professor Joffé’s clarification of the background evidence relied on by the Secretary State. There was no meaningful challenge to this. While the Upper Tribunal accepted that there are some medical facilities in Morocco which if accessed are capable of offering some treatment, the Tribunal attached weight to the evidence of Professor Joffé that mental health facilities are likely to be inadequate.
  • The Tribunal found that found that private facilities would not be affordable to the Appellant. The medical evidence established that the Appellant was at risk of self-harm or suicide which would materialise as soon as he arrived in Morocco because there would be no support to enable him to access the limited facilities available (though there was no requirement for imminent death properly applying the Paposhvilitest).
  • The evidence did not establish that medical facilities and treatment in Morocco would alleviate the immediate and high risk of self-harm or suicide that the Appellant presented. To the extent that treatment might be available, it would certainly not be accessible to the Appellant.
  • Destitution and poverty were factors that had exacerbated the Appellant’s mental health problems in the past and had also hindered his ability to access medical help in the United Kingdom. His engagement with health services in the UK had been haphazard. It was reasonably likely that he would face destitution and poverty in Morocco. At present the Appellant had accommodation in the and there was some engagement with health services.    Without any kind of support network, family or accommodation, it was unlikely that he would be able to access any kind of health care, state provision or private.
  • The Upper Tribunal took into account the high risk of suicide, daily suicidal thoughts and attempts on his life as documented by Dr Galappthie. The Upper Tribunal attached weight to the fact that the Appellant heard voices.   The Appellant had established that he had a genuine fear, albeit without an objective foundation. That fear was such as to create a risk of suicide if there was an enforced return to Morocco.
  • The evidence before the Tribunal raised a prima facie case of potential infringement of Article 3. Properly applying Paposhvili, the Secretary of State’s background evidence relating to Morocco and health care provision did not dispel serious doubts raised by the Appellant.  The Appellant had established that there were substantial grounds for considering that this was an exceptional case because of a real risk of subjection to inhuman treatment resulting from the foreseeable consequences of his removal.  He would face a real risk, on account of the absence of appropriate treatment in the receiving state or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering and a significant, meaning substantial, reduction in life expectancy.

Conclusion

It will be noted that expert evidence from a psychiatrist, a psychologist as well as a country expert was presented for consideration before the Tribunal in MY’s Article 3 claim. In addition to that, background evidence was considered and was also key to the issues raised in the appeal.

A GP report and representations prepared without further independent research is unlikely to assist a claimant in an Article 3 mental health claim.

 

Upper Tribunal accepts less exacting Paposhvili/AM (Zimbabwe) test can be applied to Article 3 material deprivation claims

In a very lengthy judgment, in Ainte (material deprivation, Art 3, AM) (Zimbabwe) [2021] UKUT 203 (IAC) (22 July 2021), the Upper Tribunal dealt with the proper approach to take in cases involving material deprivation generally, and in the context of Somalia in particular.

Main basis of appeal:

The Appellant, MAA, a Somalian national, was a foreign criminal as defined by s32 of the Borders Act 2007, having been convicted of possession of a Class A drug with intent to supply was sentenced to 4 years imprisonment.   MAA contended that he could bring himself within ‘exception 1’ as set out at s33(2)(a) of the 2007 Act as he sought to prove that his deportation would breach his rights under the ECHR.

Specifically, he contended that he faced a real risk of enduring inhuman and degrading treatment such that would violate Article 3 ECHR. This was on the basis that his return to Mogadishu would result in him facing a real risk of living in conditions of such extreme material deprivation, and so lacking in security, that they would constitute inhuman and degrading treatment under Article 3 ECHR.

(a). “N” versus Paposhvili/AM (Zimbabwe):

As a starting point, in advancing Article 3 material deprivation cases, it is important to appreciate the significance of the relevant differing tests:

  • the very much higher demanding threshold test in N; and
  • the modified test set by Paposhvili/AM (Zimbabwe)

After D v United Kingdom (App No. 30240/96), 24 EHRR 423, in N v United Kingdom (App. No. 26565/05), [2008] Imm AR 657 the Court elaborated what was meant by “exceptional circumstances”:

“42. In summary, the Court observes that since D v the United Kingdom it has consistently applied the following principles. Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.  In the D case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.

43.The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D v the United Kingdomand applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.”

The approach taken in D Bensaid v United Kingdom (App No. 44599/98), (2001) 33 EHRR 10 and N to health cases has subsequently been uncontroversially applied to those involving non-intentional material deprivation: for instance by the ECtHR in SHH v United Kingdom (App No. 60367/10), (2013) 57 EHRR 18, and domestically in  Secretary of State for the Home Department v Said [2016] EWCA Civ 442[2016] Imm AR 1084.  In such cases, where the feared harm is not caused by the actions of others, that is to say it  is “naturally occurring”, outwith the jurisdiction, applicants are required to demonstrate that theirs is a very exceptional case, where the humanitarian grounds against the removal are compelling.

The “Paposhvili test” is set out in Paposhvili v Belgium (App No. 41738/10), [2017] Imm AR 876:

“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”.

Paposhvili  was endorsed in December 2020 by the UK Supreme Court in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17[2020] Imm AR 1167, as clarified below.

(b). Upper Tribunal concludes Said  is no authority for the proposition that ‘naturally occurring’ socio-economic deprivation can never as a matter of law found a claim under Article 3:

In Secretary of State for the Home Department v Said [2016] EWCA Civ 442[2016] Imm AR 1084, the appellant a Somalia national, with mental health issues, resisted deportation on the grounds that upon return to Mogadishu he would very likely become destitute, and thus be exposed to the risk of having to enter an IDP camp, where conditions would be very poor.

In delivering the lead judgment Lord Justice Burnett reviewed the caselaw, and in particular the judgment of Lord Justice Laws in GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40[2015] Imm AR 608, and emphasised that claims based on harms arising from naturally occurring phenomena, such as illness or famine, are not paradigm Article 3 claims.

Because the feared harm was not being intentionally inflicted (either by omission or positive action) the threshold to establish a violation of Article 3 was a high one. Equating cases involving material deprivation with health claims [at §15 and §18] the Court held that the applicable threshold is that set out in N v United Kingdom (App. No. 26565/05), [2008] Imm AR 657 and N v Secretary of State for the Home Department [2005] UKHL 31[2005] Imm AR 353.

In Ainte, the Upper Tribunal sought to ensure an understanding of the effect of Said and noted the submissions put forward during the appeal, ie Said has been misconstrued by decision makers as the decision has been interpreted by some as authority for the proposition that ‘naturally occurring’ socio-economic deprivation can never, as a matter of law, found a claim under Article 3.

The Upper Tribunal observed however that on behalf of the Secretary of State it was readily accepted, such an interpretation would plainly be wrong.  It would be contrary to Strasbourg authority and the decision in Said itself [at §18 and §31].

The Upper Tribunal in Ainte, made it clear that the N threshold is undoubtedly an extremely high one, but it is not insurmountable.  Insofar as cases subsequent to Said have been read to the contrary, such readings are inaccurate. There should be an analysis of the impact on the individual concerned and living conditions must be bad enough to reach the minimum level of severity required to engage the article.  Neither Said nor Secretary of State for the Home Department v MA (Somalia) [2018] EWCA Civ 994[2018] Imm AR 1273 close the door on such cases.

The Upper Tribunal in Ainte concluded that Said is not to be read to exclude the possibility that Article 3 ECHR could be engaged by conditions of extreme material deprivation. Factors to be considered include the location where the harm arises, and whether it results from deliberate action or omission.

(c).Neither MSS v Belgium nor Sufi & Elmi approach applicable to the appeal in Ainte:

A related question which assisted the Upper Tribunal in Ainte in determining which threshold test applied in the appeal before it was the consideration of whether it  mattered whether the material deprivation arose with the jurisdiction of a signatory state.

In considering this issue, the Upper Tribunal sought to draw comparison between the cases of MSS v Belgium and Greece (App No. 30696/09), (2011) 53 EHRR 2 and Sufi and Elmi v United Kingdom (App. Nos 8319/07 and 11449/07) (2012) 54 EHRR 9.

  • In MSS v Belgium and Greece(App No. 30696/09), (2011) 53 EHRR 2 the asylum-seeking applicant had been subject to a third-country removal from Belgium to Greece where he found himself living on the streets in conditions of extreme and unremitting poverty. Holding that those conditions were inhuman and degrading the ECtHR emphasised that asylum seekers were  “a particularly underprivileged and vulnerable population group in need of special protection” and that Greece had purposely failed in its legal duties, both domestic and international,  to give them such protection. In these circumstances the threshold for proving a violation of Article 3 was simply that ordinarily applied: having regard to the personal characteristics of the claimant, can it be said that the treatment he suffered was “inhuman and degrading”?
  • Sufi and Elmi too concerned extreme poverty, but not in a signatory state: here the feared harm arose in southern Somalia. Accepting that the civilian population were in effect starving en masse, and living in conditions of extreme fearfulness and insecurity, the ECtHR went on to examine why. It found that those conditions were not naturally occurring, but arose from the ongoing conflict. For this reason the case was distinguished from N[at §282]: “282. If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or to the state’s lack of resources to deal with a naturally occurring phenomenon, such as a drought, the test in N v United Kingdom may well have been considered to be the appropriate one. However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct and indirect actions of the parties to the conflict. The reports indicate that all parties to the conflict have employed indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population. This fact alone has resulted in widespread displacement and the breakdown of social, political and economic infrastructures. Moreover, the situation has been greatly exacerbated by al-Shabaab’s refusal to permit international aid agencies to operate in the areas under its control, despite the fact that between one-third and one-half of all Somalis are living in a situation of serious deprivation.”

Consequently in Sufi and Elmi it was the ordinary threshold of harm that was applicable. In respect of what factors might be relevant in this context the ECtHR specifically directed itself to the approach taken in MSS: having “regard to an applicant’s ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame”.

In Ainte, the Upper Tribunal asked itself which of these approaches should be taken to MAA’s appeal. It was observed that neither party asked the Upper Tribunal to take the Sufi and Elmi option where the ECtHR had found a clear causal nexus between the behaviour of the various parties to the conflict and the suffering of the population.  It was noted that developments in Somalia had since changed that calculus. In  AMM and Others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC) the Tribunal found the preponderant cause of dire poverty in Somalia to be the country’s worst famine in 60 years.  Today the objective evidence pointed towards a plague of locusts that have destroyed successive harvests. In common with the panel in AMM, the Upper Tribunal in Ainte stated that it was in no doubt that three decades of civil war had some part to play in the lack of resources faced by Somalia, but for the purpose of this appeal the parties agreed that at present it was the plague which was the “preponderant cause”. As such the party’s’ in Ainte did not seek to persuade the Upper Tribunal to embark on a Sufi and Elmi analysis of the facts.

The Upper Tribunal in Ainte was however not satisfied either that the ratio of MSS could be applied in the appeal for the following reasons:

  • MSSwas concerned with inhuman and degrading treatment within Europe of a particularly vulnerable individual whom the Greek authorities had both the ability, and legal duty, to protect. That duty arose from Greece’s obligations not only under the ECHR, but under the EEA treaties and its own domestic legislation.
  • Nothing in the decision suggested that the same considerations would extend to a feared violation in a non-signatory state. It was noted that ECtHR had expressly held to the contrary in SHH v United Kingdom{90}

The Upper Tribunal was satisfied that the MSS approach could not be extended to cover situations in which non-ECHR signatories fail to meet their own regional or international commitments.

It followed that the approach to take in the appeal was that set out in N. This in turn was considered to lead to the central legal issue: where is the N threshold to be set in such cases today?

(d). SSHD asks Upper Tribunal in Ainte to confine the Paposhvili modification to health cases

The Upper Tribunal in Ainte began by stating that in Said, Burnett LJ expressly equated cases involving non-intentional material deprivation with those concerning ill-health: the Court held that it was the high N threshold that must be applied to such claims.  This was also the view taken by the ECtHR,  for instance Sufi and Elmi [§282], and by the Court of Appeal, in  MI (Palestine) v Secretary of State for the Home Department [2018] EWCA Civ 1782[2019] Imm AR 75   It was observed that to date there had never been any suggestion that different approaches should be taken to these related species of claims, yet this was the case  being put on behalf of the Secretary of State.

The  Upper Tribunal noted that the reason that the Secretary of State was now concerned to draw a distinction between these two types of ‘non-intentional harm’ cases was the modification of the N test introduced by the ECtHR in Paposhvili v Belgium (App No. 41738/10), [2017] Imm AR 876 and endorsed in December 2020 by the UK Supreme Court in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17[2020] Imm AR 1167.

Following N, claimants were required to demonstrate circumstances so exceptionally appalling that they reached the high threshold set in D: where the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.  That ‘deathbed’ scenario had now been held to set too high a threshold to properly reflect the values that Article 3 is designed to protect. The formula posited in Paposhvili was that there must be a real risk 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”.

This was the test endorsed by the Supreme Court in AM (Zimbabwe), albeit it that it is properly understood as a departure from, rather than a clarification of N. It is therefore no longer a requirement of such cases that death be imminent: the focus shifts instead to whether there will be intense suffering in the country of return, or to a significant reduction in life expectancy.

MAA in Ainte requested that the Upper Tribunal apply this modified N threshold.

Amongst others, the following submissions in resistance were advanced on behalf of the Secretary of State:

  • As regards Article 3 of the ECHR, it was never intended that the Convention would be concerned with securing rights outside the territory of the contracting parties
  • Previous caselaw in the ECtHR was concerned with harms that were to be deliberately inflicted by the authorities in the receiving states.
  • It was not until 1997 that the ECtHR in D v United Kingdomfound Article 3 to be engaged in circumstances where the feared degradation and suffering arose naturally. This was the second significant extension to the ambit of the Convention as it was originally conceived. In D the Court found a violation not only where the harm occurred outside of the jurisdiction, but where it arose from the Appellant’s naturally occurring illness: D, and N which followed, represented an ‘extension of an extension’.
  • The application of the D/Nratio to cases involving material deprivation is an extension further still.  Nowhere in any of the judgments in D or N, domestic or European, do the courts expressly contemplate such a leap. More importantly it is clear from the drafting, and indeed the history of the Convention, that its focus is upon civil and political rights as opposed to social, cultural and economic rights.  Said type cases, dealt with ‘an extension of an extension of an extension’: there was pushing at the very limits of the Convention’s protections.  Whilst the Convention may be a ‘living instrument’, its boundaries should not be distorted to the point where it would be unrecognisable to the original signatories.
  • The Upper Tribunal should proceed with caution: the modification of the Ntest introduced by Paposhvili and confirmed in AM (Zimbabwe) was a humanitarian recalibration based very specifically on the circumstances arising in medical cases. Those judgments focused on the illogicality of a distinction between dying on arrival or dying within some months. Should that relaxation of the standard be extended to cases concerned with material deprivation, it will be an extension too far. It would risk, binding the contracting parties to obligations which they did not expressly accept.

The Upper Tribunal was therefore asked by the Secretayr of State to confine the Paposhvili modification to health cases.

(e ).Upper Tribunal in Ainte accepts the less exacting Paposhvili/AM (Zimbabwe) threshold test can apply to Article 3 material deprivation cases

The Upper Tribunal refused to accept the Secretary of State’s submissions putting forward the following reasoning:

  • Decision makers must be careful not to read into the Convention protections beyond its scope, since to do so would be to bind signatories to obligations that they never agreed to. It would however be equally wrong to take a restrictive, originalist approach to the text.  The Convention is to be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory, and in a manner which continues to reflect the values of the societies that it serves.  A review of the jurisprudence since 1950 reveals just how far, applying those principles, the branches of the tree have already spread.
  • In all of the cases to which the Upper Tribunal had been referred, whether they are about poverty, or a lack of palliative care, or homelessness, the ‘living instrument’ approach has enabled the ECtHR to focus not on fact that the suffering endured by the claimants is socio-economic in nature, but on the suffering itself, and in particular its assault on the human dignity of the individuals concerned.
  • This focus upon dignity has led the Court in recent years to find violations in some arguably unlikely scenarios.
  • Having had regard to jurisprudence the Upper Tribunal was  unable to accept the Secretary of State’s submission that cases concerned with material deprivation are necessarily at the very outer limits of Convention protection and should accordingly be subject to the most stringent of standards, the unmodified N  Strasbourg has already in a variety of contexts recognised rights which, although ostensibly socio-economic in nature, arise in situations fundamentally concerned with human dignity and so capable of engaging Article 3. This approach is consistent not only with the object of the Convention itself, but with the wider humanitarian purpose of human rights law as a whole.
  • The Upper Tribunal was unable to accept the proposition that material deprivation cases are a tenuous ‘extension’ of the health cases at all.
  • The Upper Tribunal in Ainte asked itself what in the health cases is the factor that fundamentally undermines the dignity of the individuals concerned. It was considered that it was not the illnessof Mr D, Ms N, nor Mr Paposhvili which led to the cases before the ECtHR: it was the lack of medical treatment – i.e. material deprivation – that they would face upon expulsion from the host country.
  • Consequently, the Upper Tribunal concluded that it could not agree that there is any jurisprudential distinction between the health cases and those concerned with material deprivation: The Courts have treated them in the same way, uniformly applying the Ntest wherever the feared harm arises from naturally occurring circumstance.
  • Thus whilst the Upper Tribunal accepted that the Convention had expanded, and that each incremental spurt of growth must be carefully considered, it was not accepted that in applying Paposhvili to this case the Tribunal would materially, or impermissibly, be adding to that growth. They would simply be applying the law within its existing limits.  The Nthreshold has been modified by Paposhvili and AM (Zimbabwe) and it is that less exacting, but nevertheless very high test that the Upper Tribunal must apply.  The Upper Tribunal was no longer concerned with whether there would be an imminence of death for MAA upon return to Somalia, but rather whether he will be exposed to conditions resulting in intense suffering or to a significant reduction in his life expectancy such that the humanitarian case for granting leave is compelling.

Whilst MAA’s appeal itself was dismissed having regard to the circumstances of his case, the Upper Tribunal concluded in Ainte that it accepted that having had regard to the caselaw, the findings in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC) and the evidence before it, it was entirely possible that someone returning to Somalia from the UK would find themselves living in conditions that are inhuman and degrading such that would place the UK in breach of its obligations under Article 3.   It was noted that even applying the modified N test, the threshold is a high one, but on the evidence of the situation faced by those living at the ‘wrong end’ of the spectrum, the Upper Tribunal was wholly satisfied that it could be made out.

Conclusion

An analysis of the legal issues, considerations of relevant caselaw and application of the   modified N test as per Ainte is not confined to  claims of Somalian returnees but can be applied to the case of any returnee/deportee seeking to resist removal on the basis that return to their country is likely to result in them facing a real risk of enduring living conditions which would cumulatively amount to serious harm contrary to Article 3, applying the Paposhvili test as endorsed by AM(Zimbabwe).

In advancing such a claim, the Home Office or the Tribunal will consider relevant existing current country guidance caselaw in relation to the particular question of the material deprivation. Where appropriate however, the decision maker can be asked to depart from such existing country guidance caselaw, providing relevant representations with supportive background evidence including, funding permitting, an appropriate expert country report.

In considering such a claim, a careful assessment of the individual circumstances will be taken into account with a view to reaching a conclusion whether there would be a breach of Article 3 of the ECHR, ie will the individual find himself living in inhuman or degrading circumstances/conditions such that his life expectancy will be significantly reduced, or that he will experience intense suffering of the kind envisaged by jurisprudence.

Relevant considerations in preparation of such a claim will include:

  • The claimant’s life in the county of return before coming to the UK
  • circumstances relating to their family prior to arrival in the UK
  • circumstances related to their family at the date of application or appeal hearing
  • their life in the UK
  • whether they have friends in the country of return
  • circumstances related to offending in the UK and convictions
  • Any medical conditions – relevant to circumstances upon return
  • Possibility of access to money remittances
  • Possible entitlement to a payment under the Facilitated Returns Scheme/Voluntary and Assisted Returns Scheme
  • the likelihood of obtaining any kind of regular humanitarian relief in the country of return, for example from an NGO
  • consideration of the employment situation in the country of return