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

The things that tell you that despite being referred to as “Customers” by the Home Office, Applicants are treated no more than cash machines during the application process

Online, the Home Office refer to applicants as “Customers” and state they provide a “Service” to such applicants during the application process:

“The service we offer

Our service standard processing times for standard applications (6 months or 8 weeks depending on application type) will start when we receive your application.

…………………..

 Our customer charter sets out the service UK Visas and Immigration aims to provide its customers and what it expects from them”www.gov.uk/government/organisations/uk-visas-and-immigration/about-our-services

The published Customer Service Commitment states:

“We aim to be a customer-focused organisation, offering a high-quality service, making it clear what you can expect from us and what your responsibilities are in return.

What you can expect us to do

You can expect us to:

  • make our application processes clear and simple
  • respond to your enquiries in full
  • make a correct decision based on policy and law, understanding your individual circumstances
  • explain our decision clearly and, where appropriate, help you understand what to do next
  • have a simple to use complaints process that puts things right if we make a mistake
  • treat you with respect and be sensitive to your situation
  • keep your personal information, and anything you tell us, safe and secure
  • seek your feedback to continually improve our service”.

www.gov.uk/government/publications/customer-service-commitments-uk-visas-and-immigration/uk-visas-and-immigration-customer-commitments

The above professed commitments are nothing but mere lip service.

In practice, applicants are not treated as actual Customers by the Home Office. Neither is a service provided to them. This is despite an applicant having paid substantial Home Office application fees for the “service”.

Indicators that an applying individual is not a customer of the Home Office and no actual service is being provided to them

That in practice applicants are not “Customers” nor receive a “Service” from the Home Office during the application process, but are a good source for the siphoning of money for the government, is evident from the following:

  • When on top of exorbitant Home Office application fees, Applicants are expected(and have been conditioned) to pay between £71.50 to £138.00 or more to book a standard biometrics enrolment appointment. This is despite the Government publishing on 2 November 2018 in relation to the newly introduced application process, Free appointments will be available for everyone, however, customers will also have the option to purchase added value services such as same day appointments and On Demand services” – gov.uk/government/news/new-uk-visa-and-citizenship-application-services-centres-open
  • When Applicants are fleeced twice for the same process, ie paying twice for enrolling biometrics. A £19.20 biometrics enrolment fee is automatically added to the Home Office application fees payable on submission of the online application form. Subsequently however, for Applicants who have already self-uploaded supportive documents and requiring no other additional add-on services, they expected to pay an additional fee referred to above to book an appointment solely to have biometrics enrolled.
  • When an Applicant pays £2408.20 for an indefinite leave to remain application but is required to pay an additional £1560 for the Immigration Health Surcharge if the indefinite leave to remain application is refused but limited leave to remain is granted instead. For example, an applicant applies in April 2021 for ILR based on the 10year lawful long residence Rule, however in September 2021 that application is refused but since the Applicant has a British citizen child or a child aged at last 7years residing in the UK at the date of application, limited leave to remain is likely to be granted instead. In such circumstances, the Applicant will pay out a total of £3968.20 to the Home Office in the space of 5months. The £1560 is required to be paid to the Home Office within 10working days from the date of the refusal of the ILR application, otherwise the deemed limited leave to remain application will be rejected as invalid. If the application is rejected as invalid the applicant becomes an overstayer.  See Paragraph 276A04 of the Immigration Rules in this regard and the circumstances in which the Home Office will treat the application for indefinite leave to remain as an application for limited leave to remain.
  • When the Home Office deduct a £25 administrative fee from the overall application fees paid when an application is rejected as invalid.
  • When a mere human rights limited leave to remain application (£ 2612.20 total per applicant) costs more to process than a SET(LR) or SET(O) or FLR(DL) indefinite leave to remain application (£2408.20 total per applicant). Why can’t the limited leave application also be charged at £2408.20?
  • When an Applicant completes and submits a private life human rights online application form in less than an hour, requiring only to upload a few documents, yet an eye watering £2612. 20 is required to be paid before the online form can go through for submission.
  • When an Applicant on the 10year route to settlement is expected (based on current fees of £2612.20 per applicant) to pay a minimum of £10,448.80 over the years before they are eligible to apply for indefinite leave to remain. If such an applicant has a dependant Partner and they have children later on requiring to be added on in future extension applications during that 10year period, then a fortune from that household to the Home Office will be payable during the 10years.
  • When in order to receive an expedited decision within 5working days via the ‘priority service’, it costs £500 in addition to the application fee. To receive a decision by the end of the next working day through the ‘super priority service’, it costs £800 in addition to the application fee. The standard Home Office application fees payable are already exorbitant as it is. The higher additional fees that apply to receive a faster decision only go to show that applicants are being treated as ATM’s by the Home Office. For applicants of little means needing to travel urgently, perhaps due to family illness abroad, and only able to make provision for the standard application fees, there is no hope of receiving a faster decision within a week.
  • When from submission of an application to decision-making several many months later, no contact at all is received from the Home Office in the interim period. Such a practice is clearly contrary to the Home Office’s own published guidance: “If there is a problem with your application or if it is complex, we will write to explain why it will not be decided within the normal standard. We will write within the normal processing time for the 8 week standard and within 12 weeks for the 6 month standard. The letter will explain what will happen next”gov.uk/government/organisations/uk-visas-and-immigration/about-our-services
  • When the Home Office Complaints procedure usually yields little that resembles a “customer-focused” approach.
  • When the Home Office play hide and seek with their contact email addresses. A Home Office email address may be in use one week but not the other. When contact is made if a relevant email address is in sight, either no response at all is received from the Home Office or a response is only received following numerous chaser correspondence. So far for human rights applications, the following email addresses have recently in September 2021 yielded some responses from the Home Office: ssc-fhru@homeoffice.gov.uk or fhr14@homeoffice.gov.uk
  • When FLR(FP), FLR(DL), FLR (FM), SET(LR) Applicants (and others) do not receive acknowledgement letters following submission of their applications. Due to the online application process introduced in November 2018, the Home Office no longer issue individual letters acknowledging receipt of pending applications. A consequence of this for Applicants whose employers still insist on seeing a Home Office acknowledgment letter whilst declining to conduct a right to work check on the employee, is termination of employment.   That an appropriately worded acknowledgment letter/email is relevant and important for each applicant is evident from the contents of the email  set out below received from the Home Office on 10 September 2021 after several urgently phrased  chaser emails when an Applicant was about to have her employment terminated:   “Thank you for your email.  We apologise for the late response. Please note that this mailbox is for internal use only. Your email has been forwarded to the relevant department who have advised the following: I can confirm that your client Mrs….. had valid leave in the UK and they made a new application in time. Your client is covered by Section 3C Leave under the same conditions as their previous visa whist your current application is under consideration. Employers can make checks of your immigration status using the link below. https://www.gov.uk/check-job-applicant-right-to-work . Their reference with the UKVI is 1212-0001-000-0000 and 20000000. This relates to the current application that they have open. If you have any further enquiries, please contact our enquiry services. Full details of how to contact UKVI by phone or e-mail, from both inside and outside the UK, can be found at https://www.gov.uk/contact-ukvi-inside-outside-uk.   Any enquiries already made to the above team will be responded to within 15 working days of receipt. Please ensure you follow the correct procedure advised above as further emails to this inbox may not be read and may be deleted without a response”.

Conclusion

When applicants enquire why the Home Office do not respond to correspondence or why the delay in decision making in their case is  growing increasingly alarming despite having paid so much  to the Home Office for processing their applications, it sometimes is tempting to state the obvious: “Unfortunately, you are not and will likely never be treated as a true  “customer” by the Home Office during the processing of your application. Ignore the fact that you have just paid significant fees to the Home Office. The Home Office is a different sort of creature in comparison to other UK government departments. Do not expect a” service” from the Home Office. To the Home Office you are an immigrant (not a customer) who has made an application for leave to remain, to be responded to only when the Home Office are ready to do so or when they can no longer logically sustain the current wall of silence. Be rest assured however that I will diligently continue to pursue the progress of your case including submitting a complaint as agreed with a view to extracting a decision from the Home Office. You may however in the meantime also consider approaching your MP so that they may make separate representations on your behalf in relation to the unreasonable delay in making a decision in your case”.

Reference is  also made to previous blog posts as regards the poor “service” provided by the Home Office, including how immigrants are siphoned dry by substantial Home Office application fees:

 

 

 

 

Overstaying visitor parents: Requirements of Adult Dependent Rules a powerful factor in Article 8 proportionality assessment

“When people from overseas choose to make a life in the UK they are not entitled to expect that they will later be able to bring their parents to join them. The Government has decided as a matter of considered policy that that right should generally be restricted to cases satisfying the strict criteria set out in the sections denoted EC-DR and ILR-DR under Appendix FM to the Immigration Rules; and in Britcits this Court has found that policy to be legitimate. The Appellant did not apply under those rules, no doubt because she could not on the evidence have satisfied their requirements. That is not in itself conclusive that the refusal of leave to remain would be proportionate; but, as Carr LJ explains, it is highly material, and like her I can see no error of law in the Judge’s evaluation.

I should say that the Appellant has not assisted her cause by overstaying for almost two years between the expiry of her visitor’s visa in July 2015 and her making of the present application….”,  as per Lord Justice Underhill Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886 (14 June 2021)

On the basis of Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886 (14 June 2021), parents  or other dependant adult relatives viewed as  having sought to circumvent the  demanding entry clearance Adult Dependent Relative route by coming as  visitors to the UK, overstaying and then applying for leave to remain outside the Immigration Rules, are unlikely to succeed in their Article 8 family life claims.

 

BACKGROUND

The appellant, a 66-year-old widow of Pakistan nationality, had been a frequent visitor to the UK from September 2007 and last entered the UK in June 2014 on a visitor’s visa.

She had a son and two daughters, in the UK all of whom are residents in the UK and are British citizen.  The appellant visited her children in the UK, spending only 12 months in Pakistan after 2011 and the rest of her time in the UK.

On 14 July 2017 the appellant made an application for leave to remain on the basis of her family and private life in the UK on the basis that it was unreasonable to expect her to leave the UK on account of her circumstances. She was living with her son and financially dependent on her children, in particular her son. The children were all financially independent and supported her with private healthcare insurance and accommodation in the UK. She would not be relying on public funds or NHS services. Her daughter, was also very dependent on the appellant for childcare for her young son, the appellant’s grandson. The appellant suffered from arthritis and high blood pressure. Her application was refused by decision dated 11 January 2018.

Both the First Tier Tribunal and Upper Tribunal dismissed her appeal against the refusal decision.

 

COURT OF APPEAL’S SUMMARY OF PRINCIPLES RELATING TO FAMILY LIFE IN THE CASE OF ADULTS

As regards the Court of Appeal’s summary of the relevant principles relating to family life in the case of adults, the following flows from their judgement:

“43.As set out above, the appellant’s application for leave so far as relevant to this appeal was not made under either of the above routes, but rather outside the Immigration Rules on the basis of Article 8 which provides:

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

  1. There shall be no interference by a public authority with the exercise of this right except such as 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.”

44.The relevant principles relating to family life in the case of adults have been explored in a line of well-known authorities including Kugathas; Singh v ECO New Delhi [2004] EWCA Civ 1075 (“Singh 1”); ZB (Pakistan) v SSHD [2009] EWCA Civ 834 (“ZB”); Singh v SSHD [2015] EWCA Civ 630 (“Singh 2”); Britcits; AU v SSHD [2020] EWCA Civ 338 (“AU”). The position can be summarised as follows.

45.Whether or not family life exists is a fact-sensitive enquiry which requires a careful assessment of all the relevant facts in the round. Thus it is important not to be overly prescriptive as to what is required and comparison with the outcomes on the facts in different cases is unlikely to be of any material assistance.

46.However, the case law establishes clearly that love and affection between family members are not of themselves sufficient. There has to be something more. Normal emotional ties will not usually be enough; further elements of emotional and/or financial dependency are necessary, albeit that there is no requirement to prove exceptional dependency. The formal relationship(s) between the relevant parties will be relevant, although ultimately it is the substance and not the form of the relationship(s) that matters. The existence of effective, real or committed support is an indicator of family life. Co-habitation is generally a strong pointer towards the existence of family life. The extent and nature of any support from other family members will be relevant, as will the existence of any relevant cultural or social traditions. Indeed, in a case where the focus is on the parent, the issue is the extent of the dependency of the older relative on the younger ones in the UK and whether or not that dependency creates something more than the normal emotional ties.

47.The ultimate question has been described as being whether or not this is a case of “effective, real or committed support” (see AU at [40]) or whether there is “the real existence in practice of close personal ties” (see Singh 1 at [20]).

48.Assuming that family life is established and Article 8 thus engaged, the relevant question (when dealing with the application of Article 8 to the removal of non-settled migrants who have developed a family life with someone while residing unlawfully in the host state) can be put in one of two ways, one positive and one negative:

  1. i) Whether or not the applicant’s right to respect for his/her family life under Article 8 imposes on the host country an obligation to permit him/her to continue to reside there (a positive obligation); or
  2. ii) Whether or not removal would be a disproportionate interference (a negative obligation).

As was remarked in Ali v Secretary of State for the Home Department [2016] UKSC 60[2016] 1 WLR 4799 (by Lord Reed at [32]), however, the mode of analysis is unlikely in practice to make any difference to the outcome. One is essentially asking the same question and considerations of onus of proof are unlikely to be important where the relevant facts have been established. Ultimately, whether the case is considered to concern a positive or negative obligation, the question is whether a fair balance between the relevant competing interests has been struck.

49.A central consideration when assessing the proportionality of the removal of non-settled migrants from a contracting state in which they have family life is whether the family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be “precarious”. In such cases, it is likely only to be in exceptional circumstances the removal of the non-national family member will constitute a violation of Article 8 (see Agyarko at [49] approving Jeunesse (at [108]))

50.What was meant by “exceptional circumstances” was made clear at [54] to [60] in Agyarko, namely circumstances in which a refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate. This is to be assessed in the context of a proportionality exercise which gives appropriate weight to the policy in the Immigration Rules, considers all factors relevant to the specific case in question, and ultimately assesses whether, giving due weight to the strength of the public interest in the removal of the person in the case before it, the Article 8 claim is sufficiently strong to outweigh it. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control.

………………..

52.Thus, in considering the question of proportionality, the courts must, albeit at a general level, take the SSHD’s policy (as reflected in the Immigration Rules) into account and give it considerable weight, alongside a consideration of the relevant facts of the case in question”.

 

Court of Appeal’s conclusion on whether a family life existed between the Appellant and her adult children

In finding that a family life existed between the Appellant and her adult children in the UK, the Court reasoned as follows:

  • The First Tier Tribunal Judge (FTT Judge)’s conclusion that family life did not exist was unsustainable as a matter of principle.
  • That family life existed was apparent on the basis of the FTT Judge’s own findings of fact, with which there was no need to interfere for this purpose.
  • In reaching his conclusion that the appellant had not established family life for the purpose of Article 8, the FTT Judge appeared to have been influenced by his view that, were the appellant to be in Pakistan, her children could still provide for her, house her, pay for carers, check that she had taken her medication and “in effect either directly or indirectly do all of the things they currently do”. The Court of Appeal however concluded that put the cart before the horse: the question of whether or not arrangements would be the same or similar in Pakistan, whilst potentially relevant to the question of proportionality, was immaterial to the question of whether or not family life in the UK existed in the first place.
  • Further, whilst the FTT Judge recognised the practical support provided by her children, he appeared to have failed to take proper account of additional key features, in particular: the fact that the appellant had co-habited with her son (and younger daughter) in the UK since 2014. This was not necessarily sufficient to establish family life of itself but it was certainly a very powerful factor; the fact that the appellant’s children provided not just practical and financial support but also emotional support in circumstances where the appellant, already widowed, had recently lost her family home in Pakistan to fire; the fact that the appellant provided support to her daughter and care for her grandson.
  • These were all matters which, at least cumulatively, went beyond the existence of normal emotional ties; they provided clear grounds for a finding that the appellant’s children provided their mother with real and effective support and that she in turn had a real dependency on them. Thus, the FTT Judge was wrong to hold that family life did not exist, and the Upper Tribunal Judge, who was clearly troubled by that finding, was wrong to uphold the FTT Judge’s decision to this effect.
  • The Court of Appeal indicated that to this extent, they would allow the appeal.

 

APPLICABLITY OF THE ADULT DEPENDANT RULES

The Court of Appeal set out the requirements of the Entry Clearance Adult Dependant Relative Rules (ADR ECR):

“37.The ADR ECR came into force on 9 July 2012 as part of changes to the Family Migration Rules. They provide for the granting of entry clearance as an ADR. To meet the eligibility requirements for entry clearance as an ADR all of the requirements in E-ECDR.2.1 to 3.2 must be met (see E-ECDR.1.1). Those requirements so far as material are as follows:

“Relationship requirements

2.1 The applicant must be the-

(a) parent aged 18 years or over;…

of a person (“the sponsor”) who is in the UK.

2.3 The sponsor must at the date of application be-

(a) aged 18 years or over; and

(b) (i) a British citizen in the UK; or

(ii) present and settled in the UK;…

2.4 The applicant…must as a result of age, illness or disability require long-term personal care to perform everyday tasks.

2.5 The applicant…must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-

(a) it is not available and there is no person in that country who can reasonably provide it; or

(b) it is not affordable.

Financial requirements

3.1 The applicant must provide evidence that they can be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds.

3.2 If the applicant’s sponsor is a British citizen or settled in the UK, the applicant must provide an undertaking signed by the sponsor confirming that the applicant will have no recourse to public funds, and that the sponsor will be responsible for their maintenance, accommodation and care, for a period of 5 years from the date the applicant enters the UK if they are granted indefinite leave to enter.”

38.If the applicant meets the requirements for entry clearance as an ADR of a British Citizen or person settled in the UK they will be granted indefinite leave to enter; if not, the application will be refused (see D-ECDR.1.1 and D-ECDR.1.3)”.

 

Following that the Court summarised relevant principles:

39.These rules were considered in Britcits upon a judicial review challenge to their lawfulness. The claimant charity contended, amongst other things, that the rules were incompatible with Article 8. The claim failed. As for Article 8, it was held i) that family life engaging Article 8 did not exist in every case where a UK sponsor wanted to bring an elderly parent to the UK in order to look after him/her; ii) that the new rules would not result in a disproportionate outcome in virtually all cases where Article 8 was engaged; and iii) that significant weight was to be given to the prior consultation, parliamentary debate and approval of the policy and objectives of the new rules (see [72] to [80], [82], [83], [86] to [88] and [90])

40.At [58] Sir Terence Etherton MR identified the policy behind the ADR ECR as follows:

“…It is twofold: firstly, to reduce the burden on the taxpayer for the provision of health and social care services to those ADRs whose needs can reasonably and adequately be met in their own country; and, secondly, to ensure that those ADRs whose needs can only reasonably and adequately met in the UK are granted fully settled status and full access to the NHS and social care provided by local authorities. The latter is intended to avoid disparity between ADRs depending on their wealth and to avoid precariousness of status occasioned by changes in the financial circumstances once settled here.”

41.The test now imposed for entry as an ADR has rightly been described as “rigorous and demanding” (see Ribeli (at [43]).

42.The Immigration Rules also provide a route by which an ADR may apply for indefinite leave to remain as an ADR (see Section E-ILRDR of Appendix FM) under which an applicant must, amongst other things, meet all of the requirements of Section E-ILRDR (see E-ILRDR.1.1). Those requirements include that the applicant must be in the UK with valid leave to remain as an ADR and provide evidence of non-recourse to public funds (see E-ILRDR.1.2 and 1.4)”.

 

Court of Appeal’s approach to Article 8 proportionality considerations on the Appellant’s claim:

The Court considered as follows:

  • The flaw in the appellant’s approach was to ignore the fact that the FTT Judge’s consideration of proportionality proceeded (necessarily) on the express premise that he was wrong in his conclusion on family life and that, contrary to his earlier finding, family life existed.
  • His approach or conclusion on proportionality was not flawed.
  • The FTT Judge considered and identified the law accurately-he stated correctly that the issue was ultimately one of proportionality in all the circumstances.
  • The FTT Judge had read the evidence founding the existence of family life and relating to the appellant’s circumstances in the UK, including as to her health, dependence on her children, relationship with her grandson and pastimes. He also heard and saw the appellant and two of her children give evidence; he set out and assessed the reliability of that evidence carefully. He was also aware of the death of the appellant’s husband, the loss of the family home in a fire, and the appellant’s broader family circumstances in Pakistan. There was no reason to think that these were not all matters that he properly weighed in the balance when considering proportionality.
  • At the same time, he was aware that the appellant was an educated person who could even now live independently in Pakistan where she had grown up, married, had children and spent all of her married life (and beyond). She would be financially supported and provided with accommodation by her children were she to return; she could also receive practical and emotional support from them (even if only from a distance). She had no significant health issues.
  • Further, as the authorities referred to make clear, the FTT Judge was entitled to place considerable weight on the fact that the appellant’s relevant family life (that is to say, her family life in the UK) was established at a time when her status here was precarious. She never had indefinite leave to remain in the UK (see Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58[2018] 1 WLR 5536at [44]), and from 23 July 2015 onwards had no right whatsoever to remain. The FTT Judge was entitled to conclude that a refusal to allow the appellant to remain would not result in unjustifiably harsh consequences for her and that, accordingly, exceptional circumstances had not been established.
  • Whilst the grandson’s interests fell to be considered, it is clear that they were not seen by the parties as being of material significance in the context of the proportionality exercise overall. Without underplaying the potential importance of a grandparental relationship, the facts here were far removed from those in Jeunessefor example, where the three children involved were the children of the applicant who was their “primary and constant carer”. The FTT Judge’s approach reflected the appellant’s apparent position before him as to the weight to be attached to the grandson’s interests in the balancing exercise to be carried out.

 

Relevance of the Adult Dependent Relatives Rules to the Article 8 proportionality assessment in the Appellant’s claim:

The Court of Appeal concluded that:

  • The FTT Judge was self-evidently aware of the relevant context, namely that the appellant had not pursued an application under the ADR ECR and was applying outside the Immigration Rules under Article 8.
  • It was common ground that whether or not the appellant would have qualified for entry under the ADR ECR was not determinative of the question of whether or not the refusal decision was compatible with Article 8. However, the fact that the Secretary of State, in the discharge of her statutory duty to regulate immigration, has set out a clear policy, reflected in the ADR ECR, as to the requirements to be met by ADRs seeking to settle in the UK will be a powerful factor in any Article 8 assessment of proportionality. This proposition is clearly established on the authorities (for example in Agyarko (at [47])
  • Whilst those representing the appellant were not in a position formally to concede the position, it could not realistically be suggested that the appellant would have met the requirements in 2.4 and 2.5 of the ADR ECR. Her physical condition came nowhere near the threshold (of requiring long-term personal care to perform everyday tasks) and she could obtain the required level of care in Pakistan. The fact that the appellant may not burden the UK taxpayer’s purse because she could access private healthcare in the UK was no answer to the Secretary of State’s position, in the sense that she would still not meet the relationship requirements of the ADR ECR. In any event, the appellant’s reliance on the fact that her children were wealthy was at odds with the second limb of the Secretary of State’s policy as identified in Britcitsat [58], which is to avoid disparity between ADRs depending on their wealth.
  • The ADR ECR, reflecting the Secretary of State’s policy as approved by Parliament and upheld as lawful in Britcits, provide the conventional pathway for entry to the UK as an ADR. Whether deliberately or otherwise, the appellant circumvented that route by coming as a visitor to the UK, overstaying and then applying for leave to remain outside the Immigration Rules. She presented the Secretary of State with the sort of “fait accompli” referred to by Lord Reed in Agyarko at [54]: “…. the Convention is not intended to undermine [a state’s right to control the entry of non-nationals into its territory and their residence there] by enabling non-nationals to evade immigration control by establishing a family life while present in the host state unlawfully or temporarily, and then presenting it with a fait accompli. On the contrary, “where confronted with a fait accompli the removal of the non-nationals family member by the authorities would be incompatible with article 8 only in exceptional circumstances”: Jeunesse, para. 114.”
  • In these circumstances, the FTT Judge’s finding on proportionality was fully justified. Indeed, taking the strength of the family life at its highest on the facts, there was really only ever one realistic answer on the question of proportionality, namely that the refusal decision was not incompatible with the appellant’s right to respect for her family life under Article 8.
  • This was a case where the appellant will be cared for in Pakistan by one or more of her children (who will move to live with her), were she to have to return to Pakistan. The appellant acknowledged that one or more of them would return to live with her and each child stated that he/she would do so (albeit reluctantly). Ribeliconfirms that the willingness of a child to return abroad with the parent can be an important factor in favour of refusal of leave to remain. However, unlike the position in Ribeli, there has been no finding here that it would be reasonable for one or more of the appellant’s children to return to join her in Pakistan (even if, as a matter of fact, they would be prepared to do so). In these circumstances, the Court did not lay any material weight on what would in any event be only an additional factor in favour of an already justified refusal.

The Court of Appeal therefore rejected the challenge to the FTT Judge’s conclusion on proportionality and upheld the Upper Tribunal Judge’s dismissal of the appeal against it.