Coronavirus: The UK Government should afford the undocumented sufficient dignity in matters of life and death by regularising their status

  1. The Problem
  2. Leave to remain outside the Rules v Appendix FM and Paragraph 276ADE(1) applications
  3. Power of the Secretary of State to grant leave to remain outside the Rules
  4. Reasons for application
  5. Leave to remain outside the Rules- application process
  6. What the Home Office should do- problems with the current application process
  7. Duration of grant of leave to remain outside the Rules
  8. Conditions of grant of leave outside the Rules- No recourse to public funds
  9. No recourse to public funds- the way round this relying on the Discretionary Leave Policy
  10. Grant of leave to remain under the Discretionary Leave Policy
  11. Refusal or mere deferral on basis that circumstances are short lived
  12. Refusal and right of appeal
  13. Leave to remain- Article 3 medical condition cases
  14. Carers concession
  15. Applying to lift the no recourse to public funds condition

(1)THE PROBLEM

There are reports that a million undocumented migrants could go hungry because of the coronavirus pandemic – https://www.theguardian.com/world/2020/mar/23/million-undocumented-migrants-could-go-hungry-say-charities:

  • Approximately a million undocumented migrants living under the radar in the UK could be at risk not only of contracting Covid-19 but also of starvation because of the crisis created by the pandemic, charities have warned.
  • A report published in November 2019 by the Pew Research Center, a Washington thinktank, estimates that there could be between 800,000 and 1.2 million of these migrants currently in the UK.
  • Asylum seekers with an active claim receive meagre support from the Home Office – £37.75 per week – to buy food and other essentials and no-choice accommodation. However, the vast majority of those whose cases have been refused receive no support at all.
  • They are not allowed to work and survive thanks to a network of charities who provide survival packages of cooked meals at day centres, food parcels, secondhand clothing and supermarket vouchers. However, these charities have closed their day centres because of the pandemic.
  • Haringey Migrant Support Service has created an emergency fund for its homeless and destitute migrant visitors who they were previously supporting with food bank vouchers, food parcels and clothes. They were also providing lunch at their drop-in centres, which are not currently operating during the pandemic.
  • It is unclear whether an initiative due to be announced on Monday to house homeless people in empty hotels will include destitute migrants or only British street homeless people. The latter have access to housing and other benefits, the former do not”.

The UK government has the ability to regularise the immigration status of those in the UK without leave to remain, yet despite the pandemic and its devastating effects, the government remains silent, inactive on this particular issue.

Yes, suspending the eviction of failed claimants from asylum supported accommodation sounds like a whole lot of positive action but it actually isn’t.  It’s merely keeping the status quo. Where else were these people supposed to go? They are currently irremovable.

These are not concessions to the undocumented but something that should and would have been demanded by those representing those rendered vulnerable due to current circumstances.

As a practical matter, it was expected there would come a point when UKVI Liverpool would stop taking Further Submissions provided in person.  Until a few years ago, further submissions were sent by post to the Home Office. The government should not be applauded for instituting lodgement of submissions via a designated email address- they were bound to take a step back on in-person submissions, sooner rather than later. Where the government subsequently seeks once again to unnecessarily tighten up the procedure and revert to the position prior to 18 March 2020, there should be demands for justification of such action.

The current position includes extensions of visas to 31 May 2020 where leave expires between 24 January 2020 and 31 May 2020, if a person cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19).

For those that are applying to stay in the UK , current Home Office guidance states, “During these unique circumstances you’ll be able to apply from the UK to switch to a long-term UK visa until 31 May. This includes applications where you would usually need to apply for a visa from your home country. You’ll need to meet the same visa requirements and pay the UK application fee. This includes those whose leave has already been automatically extended to 31 March 2020”.

The Government needs to go further.  Leaving the undocumented in limbo, unregularized and unable to access essential services, fails to recognise that in current circumstances the undocumented are human, human enough to be treated equally as British citizen themselves in matters of life and death.

Those wishing to regularise their immigration status should not wait endlessly but seek to submit leave applications relying on their circumstances and requesting that leave be granted.

(2)LEAVE TO REMAIN OUTSIDE THE RULES  v  APPENDIX FM AND PARAGRAPH 276ADE(1) APPLICATIONS

There is a difference between applications placing reliance upon the Immigration Rules and those, forming the basis of discussion, which place reliance on exceptional compelling and compassionate circumstances/factors outside the Rules.

From 1 April 2003 to 9 July 2012, the majority of applications which fell outside the Immigration Rules in the UK were considered within the discretionary leave criteria, which (along with humanitarian protection) replaced exceptional leave to enter or remain. This included cases on family, private life, medical and other European Convention on Human Rights (ECHR) grounds.

On 9 July 2012 and 10 August 2017, legislation was changed to bring the majority of family and private life cases under part 7 paragraph 276ADE(1) and Appendix FM of the Immigration Rules.

In all family and private life cases, the Home office will consider whether the Immigration Rules are otherwise met and if not, will go on to consider whether there are exceptional circumstances which would render refusal a breach of ECHR Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family. Each application is considered on its merits and on a case-by-case basis taking into account the individual circumstances.

(3)POWER OF THE SECRETARY OF STATE TO GRANT LEAVE TO REMAIN OUTSIDE THE RULES

The Secretary of State has the power to grant leave on a discretionary basis outside the Immigration Rules from the residual discretion under the Immigration Act 1971.

An application for leave to remain outside the Rules  can be granted on compelling compassionate grounds where the Home Office decides that the specific circumstances of the case includes exceptional circumstances. These circumstances will mean that a refusal would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of ECHR Article 8, Article 3, refugee convention or other obligations.

It is arguable that the Secretary of State’s own Policy Guidance was formulated to cater for current circumstances, ie Leave outside the Immigration Rules, Version 1.0, 27 February 2018.

Although the Leave to Remain Outside the Rules( LOTR) Guidance states:

“A grant of LOTR should be rare. Discretion should be used sparingly….”

there are other parts of the Guidance upon which reliance can be placed:

“Reasons to grant LOTR

Compelling compassionate factors are, broadly speaking, exceptional circumstances which mean that a refusal of entry clearance or leave to remain would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of ECHR Article 8, refugee convention or obligations. An example might be where an applicant or relevant family member has experienced personal tragedy and there is a specific event to take place or action to be taken in the UK as a result, but which does not in itself render refusal an ECHR breach.

Where the Immigration Rules are not met, and where there are no exceptional circumstances that warrant a grant of leave under Article 8, Article 3 medical or discretionary leave policies, there may be other factors that when taken into account along with the compelling compassionate grounds raised in an individual case, warrant a grant of LOTR. Factors, in the UK or overseas, can be raised in a LOTR application. The decision maker must consider whether the application raises compelling compassionate factors which mean that the Home Office should grant LOTR. Such factors may include:

• emergency or unexpected events

• a crisis, disaster or accident that could not have been anticipated

LOTR will not be granted where it is considered reasonable to expect the applicant to leave the UK despite such factors. Factors, in the UK or overseas, can be raised in a LOTR application. These factors can arise in any application type”.

The coronavirus is a crisis, a disaster that could not have been anticipated. How the current circumstances and the effects flowing from the pandemic may potentially affect the country conditions in the country of return justifying a leave application, is dealt with below.

(4)REASONS FOR APPLICATION

Any compelling compassionate factors that an applicant wishes to be considered, including documentary evidence and the period of leave required or requested would need to be raised within an application.

A basis of application as clarified above and also set out further below could place reliance on the following:

  • Exceptional circumstances outside the Rules – a refusal of leaveto remain would result in unjustifiably harsh consequences for the applicant or their family
  • Article 8 of the ECHR within the Rules- although the applicant has lived continuously in the UK for less than 20 years, 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( due to conditions in the country of return)
  • Article 3 medical condition grounds
  • Carers Concession Policy

(5)LEAVE TO REMAIN OUTSIDE THE RULES- APPLICATION PROCESS

If an applicant in the UK wishes to be considered solely outside the Immigration Rules, they should apply using the further leave (human rights other) (FLR (HRO) application form or further leave (Immigration Rules) (FLR(IR) form.

Applicants should indicate that they are applying for other purposes not covered by other application forms and should provide details, including any relevant documentary evidence explaining in more detail why they are seeking leave to remain on compelling compassionate grounds.

Where the applicant is not subject to a fee exemption, they must pay the relevant application fees and charges.

If an applicant in the UK wishes to be considered for a grant of indefinite leave to remain (ILR) outside the Immigration Rules, they should apply on form SET(O).

(6)WHAT THE HOME OFFICE SHOULD DO- PROBLEMS WITH THE CURRENT APPLICATION PROCESS

UK Visa and Citizenship Application Centres (UKVCAS), Post Office enrolment services and Service and Support Centres (SSCs) are temporarily closed because of coronavirus (COVID-19). Applicants cannot book an appointment.

The Home Office should set up a new simplified  procedure to enable submission of an application/request for leave to remain outside the Rules via a designated email address  through which  submission of  representations and supportive documentation can also be done.

Some applicants are unable to make provision of the required Home office application fee (£1033.00 per applicant) and NHS Health Surcharge( £1000 per applicant).

The online application procedure, beginning from the on-line fee waiver application process to actual submission of the online substantive application form appears redundant currently,  not fit for purpose.

The fee waiver application process requires supportive documentation to be sent to a designated Home Office postal address, with a decision made usually within 3 to 6weeks. That’s too long a process where individuals require urgent decisions on applications made.

Even with online submission of a form, currently there are no appointments to be obtained to enable the application process to progress.

The Home Office should  urgently be providing a  designated email address so that consideration of applications can be made and decisions notified. 

(7)DURATION OF GRANT OF LEAVE TO REMAIN OUTSIDE THE RULES

The Secretary of State’s Policy is that the  period of  grant of leave to remain outside the rules should be of a duration that is suitable to accommodate or overcome the compassionate compelling grounds raised and no more than necessary based on the individual facts of a case.

The Home Office position is that most successful applicants would require leave for a specific, often short, one-off period.

Indefinite leave to enter or remain can be granted outside the rules where the grounds are so exceptional that they warrant it. Such cases are stated as likely to be extremely rare. The length of leave will depend on the circumstances of the case.

Applicants who are granted leave to remain outside the Rules are not considered to be on a route to settlement (indefinite leave to remain) unless leave is granted in a specific concessionary route to settlement.

(8)CONDITIONS OF GRANT OF LEAVE OUTSIDE THE RULES – NO RECOURSE TO PUBLIC FUNDS

Home Office Guidance, Leave outside the Immigration Rules, Version 1.0, 27 February 2018 provides  that where leave is granted outside the Rules:

“Conditions for limited leave should be no recourse to public funds, no work and no study. Any deviation from this should be rare and only where there is sufficient evidence to show why such conditions should not be applied”.

(9)NO RECOURSE TO PUBLIC FUNDS- THE WAY ROUND THIS RELYING ON  THE DISCRETIONARY LEAVE POLICY

The Secretary of State’s Policy Guidance Discretionary leave, provides relevantly:

“1.2 Background

………………

……..The circumstances in which someone may be granted leave for exceptional (non-family or private life) reasons are covered either by the policy on Leave outside the Rules (LOTR) for non-Article 8 reasons or this DL instruction.

………………………

3.1 Key principles

Discretionary Leave (DL) must not be granted where an individual qualifies for leave under the Immigration Rules or for Leave outside the Rules (LOTR) for Article 8 reasons. It only applies to those who provide evidence of exceptional compassionate circumstances or there are other compelling reasons to grant leave on a discretionary basis”.

Applicants should  apply for leave and  specifically request a grant of Discretionary  Leave to Remain. This is most relevant as the conditions under which leave is granted are more favourable, allowing recourse to public funds:

“Section 4: Granting or refusing leave

……………

4.3 Recourse to public funds, work and study

Those granted DL have recourse to public funds and no prohibition on work. They are also able to enter higher education. However, those on limited leave are not eligible for higher education student finance under existing Department of Business, Innovation and Skills regulations. In addition, a study condition applies to all adult temporary migrants granted DL which prohibits studies in particular subjects without first obtaining an Academic Technology Approval Scheme (ATAS) clearance certificate from the Counter-Proliferation Department of the Foreign and Commonwealth Office (FCO). Those granted DL who are aged 18 or will turn 18 before their limited leave expires will, in addition to any other conditions which may apply, be granted leave subject to the requirements set out Part 15 in the Immigration Rules”.

(10)GRANT OF LEAVE TO REMAIN UNDER THE DISCRETIONARY LEAVE POLICY

Where Discretionary Leave  is granted, Home Office Policy Guidance states that the duration of leave must be determined by considering the individual facts of the case but leave should not normally be granted for more than 30 months (2 and a half years) at a time.

When a person is granted an initial period of discretionary leave, this does not necessarily mean they will be entitled to further leave or to settlement. Subsequent periods of leave may be granted providing the applicant continues to meet the relevant criteria set out in the published policy on Discretionary leave applicable at the time of the decision.

From 9 July 2012, those granted Discretionary Leave must normally have completed a continuous period of at least 120 months’ limited leave (i.e. a total of 10 years, normally consisting of 4 separate 2 and a half year periods of leave) before being eligible to apply for settlement.

Separate arrangements exist for those granted an initial period of 3 years’ Discretionary Leave prior to 9 July 2012.

(11)REFUSAL OR MERE DEFERRAL ON BASIS THAT CIRCUMSTANCES ARE SHORT LIVED

Both Guidance,  Discretionary leave  and  Leave outside the Immigration Rules, contemplate factors  being raised which may  be sufficiently short lived,  such that it might be proportionate to refuse the application or claim  and give an undertaking not to remove the individual or expect them to leave the UK voluntarily until the circumstances have changed.

Where it is considered that the person can leave the UK within a short time of the date of decision, Home Office Guidance states that it will normally be appropriate to refuse the application or claim outright, not grant a period of leave to remain outside the Rules and defer removal until such time as it is possible.

It is however not known how long the pandemic or lockdown will last.

“Britain has been braced to expect a partial lockdown of society “for six months or longer”, following another sharp rise in the number of coronavirus deaths. Only “some” of the harsh restrictions will be lifted in the weeks to come, the deputy chief medical officer warned – even if a review after Easter judged they are working .  “Three weeks for review, two or three months to see if we’ve really squashed it,” Dr Jenny Harries told a Downing Street press conference.Download the new Independent Premium appSharing the full story, not just the headlinesDownload now  “But three to six months, ideally – but lots of uncertainty in that – to see at which point we can actually get back to normal. And it is plausible it could go further than that.”- https://www.independent.co.uk/news/uk/politics/coronavirus-uk-lockdown-end-latest-boris-johnson-a9432666.html

An applicant should provide make submissions on why a non-standard grant of less than 30 months is inapplicable. It should be explained why the circumstances of the case are not just unusual but can be distinguished to a high degree from other cases to the extent of justifying periods of leave of at least 30 months or more.

(12)REFUSAL AND RIGHT OF APPEAL

Guidance, Leave outside the Immigration Rules, states that where a human rights claim has not been decided as part of the consideration, applicants who apply for a grant of leave outside the Immigration Rules and are refused will not have a right of appeal against the decision or an administrative review of the decision.

An applicant should accompany the application with  detailed arguments  also focused on private and family life grounds or Article 3 of the ECHR, where appropriate.

For those with children who cannot yet be considered qualifying children for the purposes of the Rules,( ie British children or children under 18years with 7years continuous residence in the UK) reliance can be placed on Guidance, Leave outside the Immigration Rules  and Discretionary leave which state:

In respect of children and those with children

The application of this guidance must take into account the circumstances of each case and the impact on children, or on those with children, in the UK. Section 55 of the Borders, Citizenship and Immigration Act 2009 places an obligation on the Secretary of State to take account of the need to safeguard and promote the welfare of children in the UK when carrying out immigration, asylum and nationality functions.

In practice, this requires a consideration to be made of the best interests of the child in every decision that has an impact on that child. This is particularly important where the decision may result in the child having to leave the UK, where there are obvious factors that adversely affect the child, or where a parent caring for the child asks us to take particular circumstances into account. All decisions must demonstrate that the child’s best interests have been considered as a primary, but not necessarily the only, consideration”.

Article 8 considerations can therefore be raised in relation to non-qualifying children, setting out reasons why their removal from the UK would be disproportionate.

For those who have been in the UK for less than 20 years, reference may be made to Paragraph 276ADE(1)(vi) of the Rules that 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.

Home Office Policy Guidance, Family life (as a partner or parent), private life and exceptional circumstances, Version 5.0, 10 December 2019, provides:

“Assessing whether there are ‘very significant obstacles to integration into’ the country of return

………………

Relevant country information should be referred to when assessing whether there are very significant obstacles to integration. You should consider the specific claim made and the relevant national laws, attitudes and country situation in the relevant country or regions…..”

Where the conditions in the country of return are such that  at the point of return, there are continuing significant effects of the virus outbreak, then that may be put forward  as a factor indicating very significant obstacles to reintegration in the country of return.

(13)LEAVE TO REMAIN – ARTICLE 3 MEDICAL CONDITION CASES

Article 3 of the ECHR deals with inhuman or degrading treatment. An applicant relying on article 3 needs to show there are substantial grounds to believe there is a significant risk of such treatment (to a reasonable degree of likelihood) if they were returned to their country of origin.

Article 8 of the ECHR deals with respect for private life, including a person’s moral and physical integrity. The consequences to an applicant’s health of removing them from the UK could, in principle, engage article 8, however, such cases are considered by the Home Office  to be rare and that in most cases, it is unlikely article 8 will add anything decisive to a claim under article 3 when the same facts are relied on.

The Home Office position is also that there is no provision within the Immigration Rules for a person to remain in the UK to access, or to continue to access, medical treatment on the National Health Service (NHS). Such claims usually rely on article 3 and/or article 8 of the European Convention on Human Rights (ECHR).

The threshold set by Article 3 is very high

In summary, the Home Office position is that as regards Article 3 human rights claims on medical grounds, all cases have to meet the ‘N’ threshold:

The applicant is gravely ill (at a critical stage of a terminal illness and is close to death) and removing them from the UK would:

  • deprive them of the treatment they are currently receiving, and
  • sending them home to an early death in circumstances which would constitute a breach of article 3 of the European Convention of Human Rights (ECHR).

The Guidance  on Discretionary leave, provides:

“3.2 Medical cases

………

In most circumstances, a person cannot rely on Article 3 to avoid return on the basis that they require medical assistance in the UK. The improvement or stabilisation in a person’s medical condition resulting from treatment in the UK and the prospect of serious or fatal relapse on expulsion (ie deportation or removal from, or a requirement to leave, the UK) will not in themselves render expulsion inhuman treatment contrary to Article 3.

The threshold set by Article 3 is very high. To meet the threshold, a person will need to show that there are exceptional circumstances in their case which militate against return. Taken together, the relevant case law of D v United Kingdom [1997] 25 EHRR 423 and N v SSHD [2005] UKHL31 suggests that exceptional circumstances will arise when a person is in the final stages of a terminal illness, without the prospect of medical care or the support of family or friends or palliative care (ie relief of the pain, symptoms and stress caused by a serious illness and the approach of death) on return. The House of Lords’ decision in N was upheld by the European Court of Human Rights in N v UK (2008) 47 EHRR 39, and recently affirmed by the Court of Appeal in GS (India) & Ors v The Secretary of State for the Home Department [2015] EWCA Civ 40, in which Lord Justice Laws confirmed the very high threshold, stating that the case-law suggested that the ‘exceptional’ class of case is ‘confined to deathbed cases’ (paragraph 66).

The test established by N and D requires that caseworkers must make an assessment of whether the person’s illness has reached such a critical stage (ie is a terminal illness and the person is close to death) that it would amount to inhuman treatment to deprive them of the care which they are currently receiving and send them home unless there is care available there to enable them to live their final days with dignity. Of particular relevance to this assessment will be whether:

• the person is critically ill at the point of decision

• there is any treatment available in the country of return (including palliative care)

• the person will be able to access such treatment as is available (although the fact that they are unlikely to be able to do so is not determinative)

• the person will have the support of family or friends on return

Exceptional circumstances might in principle arise in other contexts, but the Courts have made clear that the threshold is very high. If the person’s condition or situation does not meet the Article 3 threshold, removal will not breach Article 3”.

Application procedure- medical condition cases:

Article 3 applications are non-charged, with the result  that no Home Office application fee or NHS Health surcharge is required to be submitted with the application, however where completing Form  (FLR (HRO) on line, a fee waiver application should first have been applied for and granted.

Home Office Guidance, Human rights claims on medical grounds, version 6.0 Valid from 20 May 2014,  provides:

“Applications by letter

You should normally reject applications made by letter as invalid and send the applicant the appropriate application form. However, you can accept the application as valid if the letter is submitted with acceptable medical evidence which:

· confirms the claimant is gravely ill, and

· has only weeks to live (despite ongoing treatment in the UK)

………………

Charging: article 3 and article 8 ‘mixed applications’

Where an applicant also cites other articles of the European Convention of Human Rights (ECHR) as a reason of claim (including article 8), you will need to decide if the article 3 claim constitutes a genuine reason of claim, or if it is cited only to prevent the applicant from paying a fee.

Provided article 3 is a genuine basis for a claim, then the whole application (including consideration of any of the other elements of the claim) will be uncharged. This does not mean the article 3 claim must be one which will succeed. However, you must think it has a realistic prospect of success.

If you are concerned the article 3 claim was included only so the applicant did not have to pay a fee you must discuss this with your senior caseworker and get policy advice, see link on right: Administrative operational policy.

In these circumstances only, it may be appropriate to refuse the article 3 claim, and request that the applicant make a further (charged) application for any other reasons”.

“Genuine” Article 3 medical condition cases may therefore by submitted by letter without going via the online application route.

As noted above, in current circumstances, the Home Office should be providing a designated email address to enable submission  and prompt decision making.

The applicant should provide accurate and up-to-date medical evidence in support of their application. The focus of the evidence they provide must be on their current state of health. A medical report must be submitted and written and signed by a qualified health professional who must have seen the claimant in person. For this purpose, the definition of a qualified health professional is a Consultant working in the NHS in the relevant specialist subject. This person must be registered with the General Medical Council. The medical report must be printed on letter-headed paper showing the address and contact details of the hospital or National Health Service (NHS) trust and the name, telephone number and fax number of the Consultant.

Grant of leave- medical condition cases

If an application is successful, Discretionary leave is granted outside of the Immigration Rules.

Guidance, Human rights claims on medical grounds, version 6.0 Valid from 20 May 2014, states as follows as regards grant of leave where an Article 3 medical condition case is successful:

“You may grant discretionary leave up to a maximum of 30 months (2.5 years). However, the leave must not exceed:

· 30 months (2.5 years), and

· life expectancy by more than three months.

You can grant leave in line with the length of treatment if it is appropriate”.

Case of Paposhvili relaxes the test for violation of Article 3 medical condition cases only to a very modest extent

The Court of Appeal in AM (Zimbabwe) & Anor v The Secretary of State for the Home Department [2018] EWCA Civ 64, considered  two appeals which concerned  the question of the operation of Article 3 of the European Convention on Human Rights, applied as a Convention right in domestic law under the Human Rights Act 1998, in relation to removal of foreign nationals from the UK where they were suffering from serious illnesses( HIV and cancer).

The Court noted that  position in domestic law was authoritatively settled in N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296. The approach laid down by the House of Lords in that case was endorsed by the Grand Chamber of the European Court of Human Rights (“ECtHR”) in N v United Kingdom (2008) 47 EHRR 39.

A question arose in AM(Zimbabwe) whether the test for application of Article 3 in this context should now be adjusted in light of the further Grand Chamber judgment in Paposhvili v Belgium, judgment of 13 December 2016; [2017] Imm AR 867.  

The Grand Chamber in Paposhvili set out the general principles governing cases of this kind at paragraphs 172 to 193.  The Paposhvili test is set out at paragraph 183 of the judgement:

“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”.

In AM(Zimbabwe) the Court of Appellant considered the effect of the judgment in Paposhvili and concluded:

“37. I turn, therefore, to consider the extent of the change in the law applicable under the Convention which is produced by the judgment in Paposhvili, as compared with the judgments in D v United Kingdom and N v United Kingdom. In my view, it is clear both that para. [183] of Paposhvili, set out above, relaxes the test for violation of Article 3 in the case of removal of a foreign national with a medical condition and also that it does so only to a very modest extent.

38. So far as the ECtHR and the Convention are concerned, the protection of Article 3 against removal in medical cases is now not confined to deathbed cases where death is already imminent when the applicant is in the removing country. It extends to cases where “substantial grounds have been shown for believing that [the applicant], 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 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” (para. [183]). This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (i.e. to the Article 3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of Article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely “rapid” experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.

39.There are a number of powerful indicators, including in the Grand Chamber’s judgment itself, which support this interpretation of para. [183] and the inference that the Grand Chamber only intended to make a very modest extension of the protection under Article 3 in medical cases:

i) Article 3 is an unqualified right with a high threshold for its application (see N v United Kingdom, para. [43], and also Paposhvili, para. [174]);

……………..

iv) the Grand Chamber in Paposhvili seeks only to “clarify” the approach set out in N v United Kingdom (see para. [182]), not to effect any major change to what had been authoritatively laid down in that case; and

v) the Grand Chamber at para. [183] in Paposhvili, as well as using the rubric “other very exceptional cases”, which itself indicates how rarely the test in Article 3 will be found to be satisfied in medical cases, emphasised in the final sentence that it was still intending to indicate that there was “a high threshold for the application of Article 3” in medical cases. This echoes the point made by the Grand Chamber in para. [43] of N v United Kingdom, set out above, about the high threshold for application of Article 3”.

AM  was considered by the Court  to have failed to satisfy the test in paragraph 183 of Paposhvili because he has failed to show that there were  substantial grounds to believe he faced a real risk of a serious and rapid decline in his health resulting either in intense suffering (to the Article 3 standard) or death in the near future if he was removed to Zimbabwe. He was HIV positive, but did not yet have AIDS. He had adduced no medical report which stated that he was likely to die soon if removed to Zimbabwe, even if he received no treatment at all; or that he could not tolerate, without side-effects, any of the range of ARV treatments available in Zimbabwe; or that, if the only ARV treatments available to him in Zimbabwe are ones which would produce side-effects, those side-effects would be so severe as the cost of keeping him alive that they would constitute suffering at an intensity to bring his case within Article 3 according to the high threshold which applies in that regard. It was considered by the Court of Appeal that AM’s case was not even as strong as that of the applicant with AIDS in N v United Kingdom, which the Grand Chamber in Paposhvili had affirmed was correctly decided.

AM appealed to the  Supreme Court where that Court was asked to consider whether to return him to Zimbabwe would violate his right under Article 3 of the European Convention on Human Rights not to be subjected to inhuman treatment by reason of his medical condition, in light of the decision of the European Court of Human Rights in Paposhvili v Belgium [2017] Imm AR 867.

AM(Zimbabwe) was heard in the Supreme Court on 4 and December 2019 and a decision is expected within some weeks or months.

Paposhvilli test and Coronavirus

The Court of Appeal in AM(Zimbabwe) considered that AM could not satisfy the test in paragraph 183 of Paposhvili as set out above.

As of 9am on 30 March 2020, a total of 134,946 people had been tested  in the UK, of which 112,805 were confirmed negative and 22,141 were confirmed positive.

As of 5pm on 29 March 2020, 1,408 patients in the UK who tested positive for coronavirus (COVID-19) had died.

The World Health Organization provides daily Coronavirus disease (COVID-2019) Situation Reports for each Country- https://www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports

The issue is whether an applicant would be able to place reliance on  the  “N” test or the Paposhvilli test if to be returned to their country of origin. The circumstances that were before the Supreme Court in December 2019 as per AM’s case are not those prevailing currently- they are much worse and potentially affect a multitude of people subject to removal.

The pandemic shows why relaxation of the test in N  is required  if reliance on Article 3 is not to be rendered illusory.

In the event that the UK may in a few weeks or coming near months be in a position to effect removals, the conditions a person(whether diagnosed with the virus or not) would  likely meet if removed to the country of return are of significant concern.

Although the Home Office might point to the risk of exposure currently existing also in the UK, if however removals are not to be effected for some months, then the more reason to grant the undocumented leave to remain outside the Rules so as to access vital services.

The continued spread, severity, spectrum of disease, impact on the community in relation to the virus outbreak will vary country by country.

An application  for leave to remain on Article 3 grounds should provide the most up  to date figures on how far  the virus has spread  across the country of return, the number of deaths arising  from the virus, the numbers tested and diagnosed as having the virus, the number of those not tested but estimated to have the virus, the country of return’s response to the  pandemic and the state  of its  health care system in response to  the virus, etc.  As per Paposhvilli principles, these consideration bring to the fore the following relevant paragraphs from that judgement:

“188. As the Court has observed above (see paragraph 173), what is in issue here is the negative obligation not to expose persons to a risk of ill-treatment proscribed by Article 3. It follows that the impact of removal on the person concerned must be assessed by comparing his or her state of health prior to removal and how it would evolve after transfer to the receiving State.

189. As regards the factors to be taken into consideration, the authorities in the returning State must verify on a case-by-case basis whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3 (see paragraph 183 above). The benchmark is not the level of care existing in the returning State; it is not a question of ascertaining whether the care in the receiving State would be equivalent or inferior to that provided by the health-care system in the returning State. Nor is it possible to derive from Article 3 a right to receive specific treatment in the receiving State which is not available to the rest of the population.

190. The authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State. The Court observes in that regard that it has previously questioned the accessibility of care (see Aswat, cited above, § 55, and Tatar, cited above, §§ 47-49) and referred to the need to consider the cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care (see Karagoz v. France (dec.), no. 47531/99, 15 November 2001; N. v. the United Kingdom, cited above, §§ 34-41, and the references cited therein; and E.O. v. Italy (dec.), cited above).

191. Where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned – on account of the general situation in the receiving country and/or their individual situation – the returning State must obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3 (on the subject of individual assurances, see Tarakhel, cited above, § 120).

192. The Court emphasises that, in cases concerning the removal of seriously ill persons, the event which triggers the inhuman and degrading treatment, and which engages the responsibility of the returning State under Article 3, is not the lack of medical infrastructure in the receiving State. Likewise, the issue is not one of any obligation for the returning State to alleviate the disparities between its health-care system and the level of treatment existing in the receiving State through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. The responsibility that is engaged under the Convention in cases of this type is that of the returning State, on account of an act – in this instance, expulsion – which would result in an individual being exposed to a risk of treatment prohibited by Article 3”.

The Home Office should be formulating policy in relation to considerations of medical condition cases and removals arising for the coronavirus.

In the meantime however, affected applicants and those relatives or friends entrusted to care and support them, should consider submission of effective representations with supportive evidence for leave to remain on discretionary grounds.

(14)CARERS CONCESSION

There are likely to be persons without leave to remain( or who hold leave to remain but need to switch ) who are caring for relatives who are permanently resident here or are British citizens.

Chapter 17, section 2 of the Immigration Directorate Instructions deals with how UK Visas and Immigration handles applications from carers – Section 2: carers

The United Kingdom’s position on carers and the ‘Care in the Community’ policy stems from existing case law, particularly the case of R v Secretary of State for the Home Department Ex parte Zakrocki.

The Carer’s Policy however stresses that UKVI and the Department of Health have consistently argued that the care in the community policy is not designed to enable people to stay in the UK who would otherwise not have leave to do so. Rather, leave should only be granted where it is warranted by particularly compelling and compassionate circumstances.

Leave to Remain – Carers for friends of a sick or disabled person

Home Office policy is that applications for leave to remain in order to care for a sick or disabled friend should normally be refused. However, in an emergency (e.g. where the patient has suddenly fallen ill and there is insufficient time to arrange permanent care or where there is nobody else in the United Kingdom to whom the patient can turn) it may be appropriate to grant leave.

Home Office Caseworkers are required to request written confirmation from the sponsor that the applicant is his/her friend. The sponsor will need to indicate how long he has known the applicant and will need to confirm that s/he agrees that the applicant can act as his/her carer. If this is not possible, Home Office caseworkers will need to request such confirmation from the sponsor’s relatives.

Consideration of the application

Application form FLR(HRO) can used to apply for leave to remain outside the Rules.

Whilst each case must be looked at on its individual merits, when considering whether a period of leave to remain should be granted, Home Office decision makers will consider the following:

• the type of illness/condition (this should be supported by a Consultant’s letter); and

• the type of care required; and

• care which is available (e.g. from the Social Services or other relatives/friends); and

• the long-term prognosis.

Granting an initial period of leave to remain

Where the application is to care for a sick or disabled relative, the Carer’s Policy states that it will normally be appropriate to grant leave to remain for 3 months on Code 3 (no recourse to employment or public funds) outside the Rules.

The applicant is required to be informed that leave has been granted on the strict understanding that during this period arrangements will be made for the future care of the patient by a person who is not subject to the Immigration Rules.

An extension of further leave should not be given unless there are wholly exceptional circumstances. Such circumstances could include where the sponsor is terminally ill and has no Social Services or family support available.

Requests for further leave to remain

Where an application is received requesting a further period of leave to continue to care for a sick relative or friend further detailed enquiries will be made by the Home Office to establish the full facts of the case.

The applicant will be required to produce the following:

• a letter from a registered medical practitioner who holds an NHS consultant post with full details of the condition/illness and long term prognosis; and

• a letter from the local Social Services Department, where they are known to be involved, advising of their level of involvement, the perceived benefits of the presence here of the applicant, and an explanation as to why suitable alternative care arrangements are not available.

• Any further evidence that alternative arrangements for the care of the patient have been, or are being, actively explored. For example, whether contact has been made with voluntary services/charities to see if they can assist or whether the possibility of private care has been costed and assessed. (a previous grant of a 3 month extension should have been accompanied by a letter explaining that the extension was granted to enable such arrangements to be made; and

• full details of the patient’s family in the United Kingdom, the degree of relationship, and, if applicable, details of how the patient was previously cared for and why these arrangements are no longer considered suitable and/or are no longer available; and

• details of the applicant’s circumstances in his home country, such as whether he has a spouse and children, the type of employment and other relevant family circumstances (as a general rule a person seeking to remain in the United Kingdom on a long term basis as a carer should normally be unmarried and have no dependants); and

• evidence that there are sufficient funds available to maintain and accommodate himself/herself without working or recourse to public funds.

An enquiry letter  set out in Annex B  of the Guidance can be used in cases where an applicant is applying for leave/further leave to remain on the basis that they are caring for a sick relative or friend. The letter’s questions are however not exhaustive and can be amended to fit the particular circumstances of the case.

Granting a further period of leave to remain

In cases where there are sufficient exceptional compassionate circumstances to continue the exercise of discretion, leave to remain may be granted for up to 12 months at a time, on Code 3 (no recourse to employment or public funds).

In wholly exceptional circumstances Code 1A (access to employment and public funds allowed) may be appropriate but the Guidance requires that such a decision must not be taken without the agreement of a Senior Caseworker.  In all cases it must be made clear to the carer that the Home Office are acting exceptionally outside the Immigration Rules.

Applications for Settlement

Home Office policy is that a carer will not normally qualify for settlement based on the time he has spent in the United Kingdom looking after a sick relative or friend unless he qualifies under the Immigration Rules relating to long residence or qualifies under some other category of the Rules. Indefinite leave to remain should be refused under Paragraph 322(1) of HC 395. Where an application for settlement has been received which falls for refusal, Home Office caseworkers will likely still consider whether further limited leave should be granted.

Refusal decisions

Where it has been decided that the facts of the case do not merit a grant of leave to remain outside the Rules, the application is likely to be refused under paragraph 322(1) of the Immigration Rules.

This refusal decision is required to be sufficiently detailed to satisfy an applicant and the Tribunal, should an appeal be lodged, that the application has been properly considered in line with the terms of the Carer’s concession. Its contents will form the basis of Home Office argument in any appeals explanatory statement or in the event of a further legal challenge.

For those who submit in time applications (i.e. the applicant still had valid leave at the time of application) as a carer any decision to refuse will attract a limited right of appeal.

If an out of time application, (i.e. the applicant had no valid leave at the time of application) for leave to remain/further leave to remain as a carer is received, any decision to refuse will not attract a right of appeal.

Other issues

Where someone is applying for leave to remain to care for a person who is not settled in the UK (for example, parents wishing to remain in the UK to care for their child while s/he receives treatment) such applicants will likely be considered for Discretionary Leave to Remain,

Applicants, who are refused leave as a carer, would not normally qualify for Discretionary Leave.

The Carer’s Policy provides that under the Care in the Community arrangements, some patients may qualify for an Attendance Allowance from which they can pay for a person to care for them. Attendance Allowance is a tax-free benefit for people aged 65 or over who need help with personal care because they are physically or mentally disabled. The allowance is paid to the patient rather than the carer and therefore the carer would not be considered to be in receipt of public funds. If the patient is claiming other benefits and is using these to support and accommodate the carer, provided that the patient is not claiming any extra benefit for the carer this should not be considered as recourse to public funds unless the carer was to claim benefits in his own right.

(15)APPLYING TO LIFT THE NO RECOURSE TO PUBLIC FUNDS CONDITION

There are migrants who have been granted leave under the private and family life route with no recourse to public funds who might be experiencing financial or other hardship which may necessitate a need to resort to pubic funds.

Paragraph 6 of the Immigration Rules provides the mearing of “Public Funds”.

Home Office Policy Guidance, Family life (as a partner or parent), private life and exceptional circumstances, Version 5.0, 10 December 2019,  sets out the criteria for the non-imposition or lifting of the no recourse to public funds condition code.

Home Office decision makers exercise discretion not to impose, or to lift, the no recourse to public funds condition code only where the applicant meets the requirements of paragraph GEN.1.11A of Appendix FM or paragraph 276A02 of the Immigration Rules on the basis of the applicant:

• having provided satisfactory evidence that they are destitute or there is satisfactory evidence that they would be rendered destitute without recourse to public funds

• having provided satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child on account of the child’s parent’s very low income

• having established exceptional circumstances in their case relating to their financial circumstances which, require the no recourse to public funds condition code not to be imposed or to be lifted

Home Office decision makers  are required to consider all relevant personal and financial circumstances raised by the applicant, and any evidence of these which they have provided.

The relevant application form to be completed by those  granted leave subject to the condition, Request for a change of conditions of leave granted on the basis of family or private life, requires the following to be submitted:

  • The  completed notification form;
  • The applicant’ existing Biometric Residence Permit (BRP) (where relevant), and passport (including  the Leave to Remain vignette where relevant);
  • Documentary evidence that the applicant meets the policy on granting recourse to public funds.

The applicant should provide evidence of their financial circumstances and living arrangements. This could include documents such as:

· Bank statements

· Savings account statements

· Pay slips

· Information about level of the applicant’s rent and bills

· Tenancy agreement or mortgage statement

· Utility and other relevant bills

· P45 / P60

· Letter confirming employment (the person writing should state their position in the company and provide contact details)

· Letter from Local Authority confirming that support is being provided

· Letter from registered charity or other organisation providing support

· Letter from family or friends who are providing support

· Any letter confirming that  the applicant or  their  spouse or partner is in receipt of public funds.

The applicant will need to explain what their  current financial circumstances are, how these may have changed, and how they are currently maintaining  themselves.

The completed form, the BRP, passport, and accompanying evidence of the applicant’s  financial circumstances need to be sent to:

TMT 20

PO Box 3468

Sheffield

S3 8WA

Or

Change of Conditions Request
FHR9
PO Box 3468
Sheffield
S3 8WA

The applicant does not need to pay a fee in order to make a request for a change of conditions of leave granted on the basis of family or private life.

If the applicant meets the requirements for an amendment to the conditions of their leave to allow recourse to public funds, the Home Office may send out a letter giving information about enrolling biometric information. This is stated to be required to done at a Service & Support Centre (SSC) for which they may qualify for travel assistance.

Where the application is successful, the applicant will be issued with a biometric residence permit lifting the no recourse condition.

In current circumstances, once again, the Home Office should be providing a designated email address to enable requests to be submitted, processed and decisions made quickly.

Is there really a secret UK Government Immigration Amnesty in operation for the undocumented? If not,what are my options?

“I am sorry, there is no published immigration amnesty so far as I am aware”, says the immigration lawyer, for the third time, during the 12minute call.

“But my friend, he says there is a secret amnesty by the government, the government does not want all people to know about it, my friend applied months ago under the amnesty and he now has a visa, he is not the only one, he is already working ”,  repeats the Caller.

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A British Spouse’s proven sensitivity to heat in India can meet the Insurmountable Obstacles test says Court of Appeal

In Lal v The Secretary of State for the Home Department [2019] EWCA Civ 1925 (08 November 2019), neither the First Tier Tribunal who allowed the Appellant’s family life appeal nor the Upper Tribunal who overturned that decision got the law quite right.

As summarised by the Court of Appeal, the case raised issues about when refusing the partner of a British citizen leave to remain in the United Kingdom violates their rights to respect for their family life.

In concluding that the “insurmountable obstacles” test to family life continuing outside the UK (in terms of EX.1(b)of Appendix FM of the Rules) had been met, the FTT Judge allowed the appeal on the basis that the Appellant’s husband, a British citizen in his 70’s , who had always lived in the UK, would not be able to move to India if his wife was required to return there as he simply would not be able to cope with the heat in the country. He was also very clear that if his wife was required to return to India that he would not be able to return with her.

On further appeal, following the Secretary of State having applied for permission to appeal, the Upper Tribunal set aside the FTT decision on grounds of error of law, re-made the decision and dismissed the Appellant’s appeal. The Appellant appealed the Upper Tribunal’s decision, with the Court of Appeal subsequently granting permission to appeal as the case was considered to satisfy the test for a second appeal as it not only had a real prospect of success but raised an important point of principle, which was expressed in these terms:

Is it open to the Upper Tribunal, having left the FTT judge’s findings on the facts undisturbed, namely that the husband of an applicant for leave to remain would not be able to cope with the identified insurmountable obstacles in the country of return and would not be able to return with her, to conclude that the test is not whether the applicant’s husband subjectively cannot surmount those obstacles but whether objectively he should be able do so?”

Background of case

The Appellant, an Indian national born in 1984 arrived in the UK on 24 January 2011 with entry clearance as a Tier 4 (General) Student valid until 10 January 2013. Her leave to remain was subsequently extended until 19 April 2015. On 12 December 2014, the Appellant married a British citizen.

On 17 April 2015 she applied for leave to remain in the UK on the basis of her relationship with him. The application was refused by the Secretary of State in a letter dated 7 July 2015. The sole reason given for deciding that the Appellant did not meet the requirements of Appendix FM for leave to remain as a partner under either the five year route or the ten year route was that the Secretary of State did not accept that the relationship between the Appellant and her husband was genuine and subsisting and that they intended to live together permanently in the UK. The Secretary of State accordingly concluded that she did not meet the requirements of paragraph E-LTRP.1.7. or paragraph E-LTRP.1.10. of Appendix FM. As regards the ten year route, the Secretary of State also concluded that, because the Appellant’s relationship with her husband was not genuine and subsisting, paragraph EX.1. did not apply in her case. In addition, the refusal letter said that the application did not raise any exceptional circumstances which warranted granting leave to remain on article 8 grounds outside the Immigration Rules.

The Appellant appealed from the Secretary of State’s decision to the First-tier Tribunal. The FTT allowed the appeal in a decision promulgated on 6 February 2017. The Secretary of State appealed from the FTT’s decision to the Upper Tribunal. The decision of the Upper Tribunal promulgated on 8 January 2018, set aside the FTT decision, remade the decision in the appeal and dismissed it. The Appellant appealed to the Court of Appeal.

Relevant legal provisions

Section R-LTRP of Appendix FM of the Immigration Rules sets out the requirements to be met for leave to remain as a partner. These include suitability requirements relating to matters such as the applicant’s criminal record, and also eligibility requirements. The eligibility requirements are set out in Section E-LTRP. This has four parts which are concerned, respectively, with the applicant’s relationship, immigration status, financial means and ability to speak English.

The following provisions of Appendix FM are also relevant:

“EX.1. This paragraph applies if – (a)

…………….

(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK. EX.2.

For the purposes of paragraph EX.1.(b) ‘insurmountable obstacles’ means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”

Since August 2017 the obligation to consider whether there are exceptional circumstances requiring leave to be granted on article 8 grounds has been contained in the Immigration Rules themselves.

Part 5A (sections 117A- 117D) of the Nationality, Immigration and Asylum Act 2002 (inserted by the Immigration Act 2014), also provides in Section 117B:

Article 8: public interest considerations applicable in all cases ………………………..

(4) Little weight should be given to— (a) a private life, or (b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious”.

Court of Appeal on the “insurmountable obstacles” test

Having noted the British spouse’s evidence before the FTT was that he was a retired man in his 70s who could not bear hot temperatures and that for this reason he felt unable to go, and would therefore not in fact go to India with his wife if she was required to leave the UK, the Court of Appeal concluded that proof of these facts was not by itself legally sufficient to establish insurmountable obstacles for the purposes of paragraph EX.1.(b) of Appendix FM to the Immigration Rules and that the reasons given by the FTT for reaching that conclusion were therefore inadequate.

The Court of Appeal accepted that the phrase “insurmountable obstacles”, as defined in EX.2. of Appendix FM was correctly reflected by the current guidance for officials published on 23 September 2019, “Family Policy: Family Life (as a partner or parent, private life and exceptional circumstances)”, version 3.0, which was an appropriate explanation of the effect of paragraph EX.2. and accordingly of what is meant by “insurmountable obstacles” in paragraph EX.1.(b) of Appendix FM.

The Court of Appeal also provided the following guidance:

• In applying the insurmountable obstacles test, a logical approach is first of all to decide whether the alleged obstacle to continuing family life outside the UK amounts to a very significant difficulty.

• If it meets this threshold requirement, the next question is whether the difficulty is one which would make it impossible for the applicant and their partner to continue family life together outside the UK.

• If not, the decision-maker needs finally to consider whether, taking account of any steps which could reasonably be taken to avoid or mitigate the difficulty, it would nevertheless entail very serious hardship for the applicant or their partner (or both).

The Court stated in Lal that to apply the test in what Lord Reed in the Agyarko case at paragraph 43 called “a practical and realistic sense”, it is relevant and necessary in addressing these questions to have regard to the particular characteristics and circumstances of the individual(s) concerned. Thus, in the present case where it was established by evidence to the satisfaction of the tribunal that the applicant’s partner is particularly sensitive to heat, it was relevant for the tribunal to take this fact into account in assessing the level of difficulty which the British spouse would face and the degree of hardship that would be entailed if he were required to move to India to continue his relationship. The Court of Appeal did not accept, however, that an obstacle to the applicant’s partner moving to India is shown to be insurmountable – in either of the ways contemplated by paragraph EX.2. – just by establishing that the individual concerned would perceive the difficulty as insurmountable and would in fact be deterred by it from relocating to India. The Court stated that the test cannot reasonably be understood as subjective in that sense. To treat it as such would substantially dilute the intended stringency of the test and give an unfair and perverse advantage to an applicant whose partner is less resolute or committed to their relationship over one whose partner is ready to endure greater hardship to enable them to stay together.

On the basis of the evidence of the British spouse and his adult children, the Curt of Appeal considered that the FTT judge was entitled to find, given the general knowledge that India has a hot climate, that the British Spouse’s sensitivity to hot weather would represent a very significant difficulty if he were to move to India but not that it would make it impossible for him to move there.

To decide whether the obstacle would entail very serious hardship for the spouse and was for that reason “insurmountable”, it was necessary in to examine the facts in more detail and to consider questions such as these:

• if the couple had to move to India, where in India could they reasonably be expected to live?

• what are the average temperatures in that part of India during different periods of the year?

• are there steps which could reasonably be taken to mitigate the heat during hot weather, such as air conditioning, and how adequate would such steps be to meet the difficulty?

• are there any cooler places in which it would be practicable for the Appellant and her British spouse to live for all or part of the year?

• the ultimate question was whether, in all the circumstances, the climate would entail not merely a significant degree of hardship or inconvenience for the British Spouse but “very serious hardship”.

The Court of Appeal concluded that the FTT did not undertake a factual enquiry of this sort. The basis on which the FTT concluded that paragraph EX.1.(b) applied was deficient and the Upper Tribunal was right to set aside the FTT’s decision.

The Court considered that there was no evidence addressing any of these matters. In these circumstances the Upper Tribunal judge was entitled to decide that the Appellant had failed to show that her British spouse’s difficulty in coping with heat amounted, on its own, to an insurmountable obstacle to the couple continuing family life outside the UK.

The Court of Appeal however concluded that the Upper Tribunal too erred in their considerations:

• In his decision, the Upper Tribunal judge said nothing further about the British spouse’s difficulty in coping with heat and instead went on to consider the difficulties posed by his age and his ties to the UK.

• In so far as the Upper Tribunal was suggesting that difficulty in coping with heat cannot entail serious hardship “in a country where there is air conditioning and available urban environments built to protect people against the heat”, there was no evidence on which to base such a sweeping statement. Nor, was it known what the judge had in mind when he postulated the existence of such “available urban environments”.

• If the Upper Tribunal judge was intending to suggest that very serious hardship could not be established without medical evidence of a condition that would make exposure to hot weather medically harmful, this could not be accepted. The question was one of fact and there was nothing wrong in principle with basing a finding about a person’s sensitivity to heat on evidence given by the person concerned and members of their family, as the FTT judge did in this case, if such evidence is regarded as sufficiently compelling.

• What the Upper Tribunal judge ought to have done was to identify all the significant difficulties which the British Spouse would face if required to move to India and to ask whether, taken together, they would entail very serious hardship for him. Had the judge approached the issue in that way and considered in combination the British spouse’s age, his proven sensitivity to heat, the fact that he had lived all his life in the UK, and his ties to friends and family including his four children and six grandchildren in the UK, the Court did not think that the answer to the question whether moving to India would entail very serious hardship for him was a foregone conclusion.

The Court of Appeal therefore concluded that, in re-making the decision on the issue of insurmountable obstacles, the Upper Tribunal made an error of law in his assessment which was material. Once again, difference between

Precarious and Unlawful Immigration Status explained: Statutory Interpretation

The Court of Appeal concluded that the Upper Tribunal judge erred when assessing whether there were exceptional circumstances which made refusing the Appellant leave to remain in the UK disproportionate and hence incompatible with article 8, since the Judge concluded as follows:

“So far as concerns her circumstances considering article 8 outside the rules, the difficulties in the way of the claimant being able to succeed are even greater as s.117B(4) of [the 2002 Act] requires me to attach little weight to a couple’s relationship when that has been entered into at a time when the claimant’s immigration status is precarious. When the couple entered into marriage the claimant was an overstayer and she has never had settled status. There are no compelling circumstances that demonstrate that in India the claimant would not be able to live with her husband without serious hardship. Accordingly, I have no alternative but to dismiss the claimant’s appeal.”

The Court of Appeal considered and concluded:

• The Upper judge was wrong to say that section 117B(4) of the 2002 Act required him to attach little weight to a couple’s relationship when that relationship has been entered into at a time when the applicant’s immigration status is precarious. Section 117B(4) does not refer to “precarious” immigration status and only requires little weight to be given to a relationship formed with a qualifying partner that is established by a person at a time when the person “is in the UK unlawfully”. The sole reference in section 117(B) to “precarious” immigration status is in subsection (5). However, subsection (5) provides only that little weight should be given to a private life established at a time when a person’s immigration status is precarious. It does not state – and there is no provision of section 117(B) which states – that little weight should be given to a relationship formed with a qualifying partner established when a person’s immigration status is precarious.

• From the point of view of the Upper Tribunal judge, the error was not material because he was under the impression that, when she married her British Spouse, the Appellant was an overstayer and was present in the UK unlawfully. It was, however, common ground that this was a mistake. The origin of the mistake appeared to be the Secretary of State’s refusal letter which, in summarising the Appellant’s immigration history, failed to mention that, although her original entry clearance was valid only until 10 January 2013, she was granted further leave to remain until 19 April 2015. The Appellant had in fact never been present in the UK unlawfully. The Upper Tribunal judge therefore considered her situation on a false premise.

• Relying on TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109, paragraph 25 on behalf of the Secretary of State, it was argued that, even so, the errors made were not material because, although this is not a requirement of section 117(B), case law establishes that little weight should be given to a relationship formed by a person with a British citizen if that relationship is established at a time when that person’s immigration status is precarious.

• The Secretary of State also relied on a reported decision of the Upper in Rajendran (s117B – family life) [2016] UKUT 138 (IAC), which indicated that, although section 117B(5) of the 2002 Act is confined to “private life” established by a person at a time when their immigration status is precarious, the considerations set out in sections 117A-D are not exhaustive and it is still relevant for a court or tribunal when considering the public interest to have regard to “precarious family life” criteria set out in established article 8 jurisprudence.

• The Court of Appeal in Lal considered that paragraph 108 in Jeunesse v The Netherlands (2014) 60 EHRR 17 and the European Court’s case law, cannot reasonably be read as establishing that, in determining the weight to be given to a couple’s right to respect for their family life, any relationship formed when one partner did not (or did not to the other’s knowledge) have a right of permanent residence in the country should be given little weight; nor that for this purpose all persons who do not have settled status should be viewed identically, regardless of their particular immigration status and history. To the contrary, the European Court has made it clear that, in striking the balance between the right to respect for family life and the state’s interest in controlling immigration, it is necessary to consider the particular circumstances of the individuals involved, including their immigration status and history- para 107 in Jeunesse.

• There are degrees of precariousness in a person’s situation ranging from, at one extreme, someone who is in the country in breach of immigration laws and is liable to removal through to someone who has been present lawfully in the country for some years and is on a pathway to settled status (such as the five or ten year partner route in the UK) but does not yet have indefinite leave to remain. It would be unreasonable to attach equal weight to family relationships established by individuals in such different legal situations and there is no “settled jurisprudence” which requires this. Rather, the Jeunesse case makes clear that a person’s immigration status may greatly affect the weight to be given to their right to respect for family life: see also R (Ali) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799, para 32; GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630, para 33. It was also worth noting that in the Jeunesse case the Court concluded that on the facts refusing the applicant residence in the Netherlands had been a violation of her right to respect for her family life as protected by article 8.

• In Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536, para 39, the Supreme Court recognised that the word “precarious” has been applied both by the European Court of Human Rights and by UK courts to refer to a variety of situations including that of a person unlawfully present as well as the status of a person lawfully present for a limited period. The Supreme Court held that in the context of section 117(B) of the 2002 Act, however, the word “precarious” should be given a bright-line interpretation which excludes anyone present in the UK unlawfully and includes everyone who, not being a UK citizen, is lawfully present but does not have indefinite leave to remain: see paras 43-46.

• As recognised in the Rhuppiah case (at para 37), it is clear that in section 117(B)(5) of the 2002 Act Parliament has deliberately distinguished between an applicant’s private life, to which little weight should be given in so far as it was established at a time when a person’s immigration status is precarious, and his or her family life, which is not the subject of such a requirement. That leaves it open to courts and tribunals in cases where a relationship with a qualifying partner is established at a time when a person is lawfully present in the UK but does not have indefinite leave to remain to give such weight to the relationship as is appropriate in the circumstances of the particular case.

• It is also notable, and unsurprising, that the policy embodied in the Immigration Rules made by the Secretary of State and approved by Parliament for granting leave to remain as a partner of a British citizen (or settled person) attaches importance to the partner’s immigration status and distinguishes between different categories of person whose immigration status is precarious, rather than treating them all in the same way. Thus, the eligibility requirements for leave to remain as a partner quoted distinguish between (i) a person who is in the UK with leave to enter or remain of more than six months, (ii) a person who is a visitor or has valid leave to enter or remain for a period of six months or less, and (iii) a person who is on temporary admission or release (arrangements now replaced by immigration bail) or present in breach of immigration laws. This is consistent with an approach which, in determining whether refusing leave to remain would be disproportionate, gives greater weight to a genuine and subsisting relationship formed by a person who has been permitted by the Secretary of State to reside in the UK for a significant period for the purpose of study or work than to a relationship entered into by someone who is merely admitted for a short visit or whose presence is tolerated only because they have made an asylum claim or other application which has not yet been determined.

• The two cases under appeal in TZ (Pakistan) were both cases in which, on the facts, it was plain that little weight should be given to the appellant’s family life. The Court noted that TZ did not even meet the definition of a “partner” for the purpose of the Immigration Rules as he had not been living with his girlfriend for two years before he applied for leave to remain. The other appellant, PG, having entered the UK as a visitor with a visa of less than five months, married the man who became her husband within six weeks of her arrival. Neither appellant therefore met the immigration status requirements of Appendix FM.

• The general observations made in TZ(Pakistan) at paras 25-27 of his judgement about family life established at a time when a person’s immigration status is precarious were made on the footing that “precariousness includes both those who are in the UK unlawfully and those who are here temporarily” (para 26) before the Supreme Court in the Rhuppiah case held otherwise.

• No point was raised in TZ (Pakistan) about the difference between, on the one hand, section 117B(4) which addresses both a private life and “a relationship formed by a person with a qualifying partner” at a time when the person was in the United Kingdom “unlawfully” and, on the other hand, section 117B(5) which addresses only “a private life” established by a person at a time when the person’s immigration status is “precarious”. In para 27 of the judgment section 117B is said to require that “if the applicant’s immigration status is precarious, then little weight is to be given to private life or to a relationship formed with a qualifying partner” . The Senior President of Tribunals in TZ(Pakistan) cannot have meant that, as a matter of statutory interpretation, section 117B(4) or (5) requires little weight to be given to a relationship formed with a qualifying partner established at a time when the person was not in the UK unlawfully but their immigration status was precarious. That would be inconsistent with the plain meaning of the statutory provisions. What is apparent from his judgment is that he considered that, in the case of both appellants, their relationship with their partner was far too tenuous to be capable of give rise to exceptional circumstances outweighing the public interest in immigration control. There was, therefore, never any issue whether, as a matter of law, little weight should be given to a substantial family relationship with a qualifying person established at a time when the person was here lawfully but their immigration status was precarious. The observations in paras 25-27 of the judgment of the Senior President of Tribunals in TZ (Pakistan) should not be read as commenting at all on that situation; if they were intended to address it, they are not binding as a precedent because they were not necessary to the court’s decision.

• The Court of Appeal indicated in Lal, that they had no issue with the observations of the Upper Tribunal in the Rajendran case on section 117B and family life. The point is that what weight it is appropriate to give to such a relationship in the proportionality assessment depends on the particular circumstances. The relevant circumstances include the duration of the relationship and the details of the applicant’s immigration history and particular immigration status when the relationship was formed (and when the application was made).

The Court of Appeal concluded that the errors made by the Upper Tribunal in Lal, were not only as to the effect of section 117B(5) and the Appellant’s immigration status but also as to the correct approach in law.

The Court stated that their conclusion on this point accords with the recent decision of the Court of Appeal in GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630, where the tribunal judge was held to have erred in law by treating the “little weight” provisions of section 117B(4) and (5) as relevant to family life as well as private life created when the appellant’s immigration status was precarious, with the result that the tribunal “wrongly discounted the weight to be attached to the family rights relied on in the proportionality assessment” (para 37).

Exceptional circumstances test and consideration of “unjustifiably harsh consequences” factors

The Court of Appeal considered that the Upper Tribunal further erred in applying the wrong test by asking whether the couple would be able to live in India “without serious hardship” as that is a relevant criterion in deciding whether there are “insurmountable obstacles” to continuing family life outside the UK.

In considering, however, whether there are “exceptional circumstances”, the applicable test is whether refusing leave to remain would result in “unjustifiably harsh consequences” for the applicant or their partner, such that refusal would not be proportionate: Agyarko case at paras 54-60.

The essential difference (reflected in the word “unjustifiably”) is that the latter test requires the tribunal not just to assess the degree of hardship which the applicant or their partner would suffer, but to balance the impact of refusing leave to remain on their family life against the strength of the public interest in such refusal in all the circumstances of the particular case. The Upper Tribunal did not undertake such an assessment. This was another error of law which flowed from the errors already identified.

From the judge’s point of view, the question of proportionality had in effect already been answered by his mistaken understanding that he was required by law to attach little weight to the couple’s relationship and his previous finding that there were no insurmountable obstacles to the continuing family life with her husband outside the UK. As a result of those errors, the judge failed to assess the factors relevant to the question of proportionality in the circumstances of the case.

The factors which it was relevant to the Upper Tribunal to consider included the following:

• The FTT’s findings and evidence about the Apellant’s family life with her husband, including the fact that they had been in a relationship since May or June 2012 and living together since July 2014 before marrying in December 2014.

• The facts that the Appellant was present lawfully in the UK when their relationship was established, that she had never been in breach of immigration laws and that she met the immigration status requirements in Section E-LTRP of Appendix FM to the Immigration Rules.

• The facts that no issue had been raised about the Appellant’s ability to speak English or financial independence.

• The facts that the British citizen spouse was aged 73 at the time of the Upper Tribunal hearing, had lived all his life in the UK and that all his friends and family (including his four children and six grandchildren) are in the UK.

• The finding of the FTT that the British spouse would face very significant difficulty in living in India because of his inability to cope with heat.

The Court of Appeal considered that had the correct approach been adopted and the relevant factors considered, there was a real possibility that the Upper Tribunal might have concluded that it would have unjustifiably harsh consequences for the Appellant and her husband, and would be disproportionate, to require the Appellant to leave the UK. The errors of law made by the Upper Tribunal were therefore material.

Court of Appeal allows appeal and takes into account uptodate material change of circumstances

The Court of Appeal set aside the Upper Tribunal’s decision but rather than remitting the case to the Upper Tribunal to re-make the decision, it was considered an appropriate course to invite the Secretary of State to consider the case afresh, as she had made it clear that she would do. There were two reasons for this:

• The Secretary of State’s officials had not yet addressed the relevant questions because, the sole reason given for the decision to refuse leave to remain – since found by the FTT to be erroneous – was that did not have a genuine and subsisting relationship and did not intend to live with her husband permanently in the UK. (The decision also appeared to have been made on the mistaken understanding that the Appellant was an overstayer.)

• Since the Appellant’s application for leave to remain was refused and since her case was considered by the Upper Tribunal, there had been a material change of circumstances which – as discussed in the GM (Sri Lanka) case at paragraph 7 – must now be taken into account.

• The new circumstance was that the Appellant and her husband now had a daughter who was born on 8 June 2019. She is a British citizen and is therefore a qualifying child for the purposes of paragraph EX.1.(a) of Appendix FM to the Immigration Rules and section 117B(6) of the 2002 Act.

• In accordance with those provisions, if on the footing that the Appellant has a genuine and subsisting parental relationship with her daughter, and taking into account the child’s best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK, then paragraph EX.1. applies without the need to show insurmountable obstacles to continuing family life outside the UK and, pursuant to section 117B(6), the public interest does not require the Appellant’s removal from the UK. This was a matter which the Secretary of State accepted that it was now necessary for her officials to consider.

Caselaw considered:

• GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630

• TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109

• Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536

• (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11; [2017] 1 WLR 823

• R (Ali) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799

• Rajendran (s117B – family life) [2016] UKUT 138 (IAC)

• Jeunesse v The Netherlands (2014) 60 EHRR 17

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

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

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

Background

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

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

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

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

OH’s family circumstances

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

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

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

What the FTT Judge found

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

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

“(4) Exception 1 applies where—

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

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

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

“(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh”.

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

“(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2”.

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

In summary, the FTT Judge found:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Court of Appeal’s considerations and conclusions

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

In reference mainly to the following case law:

• Ali v SSHD [2016] UKSC 60

• Agyarko v SSHD [2017] UKSC 11

• KO (Nigeria) v SSHD [2018] UKSC 53

• Rhuppiah v SSHD [2018] UKSC 58

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

• the proportionality test;

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

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

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

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

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

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

Background summary

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

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

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

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

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

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

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

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

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

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

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

The Proportionality Test explained

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

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

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

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

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

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

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

Court of Appeal’s considerations and conclusions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The paramountcy of the interests of the children:

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

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

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

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

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

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

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

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

New Home Office Guidance: Automatic Zambrano refusals emptying EEA Regulations of usefulness

Whether the application was submitted prior to the recent Home Office Guidance which came into effect on 2 May 2019 or thereafter, Zambrano derivative residence card applications relying on the 2016 EEA Regulations, are being automatically refused. This is on the basis  that there is an Article 8 alternative route application by reference to the Immigration Rules/Appendix FM.

In practice, the indicators are that for cases caught by the policy guidance, no matter how well prepared the “Zambrano” application is or whether the applicant appears to fully satisfy the requirement of the Regulations, it will be refused.

A recent blog post of 7 May 2019 sets out the effect of the Guidance: “Home Office to refuse Zambrano applications under EEA Regs if Appendix FM/Article 8 alternative available”

Current form of refusals

Upon receiving the refusal decision, applicants shouldn’t expect engagement with any  prior submissions put forward, for example as to why the policy guidance might be grounded on an erroneous interpretation of Patel v SSHD [2017] EWCA Civ 2028 (13 December 2017, nor any issues on unfairness, etc.

Refusal decisions are to the following effect:

“Your application has been refused for the reasons set out in the enclosed notice.

You are applying on the basis that you are the primary carer of Miss……….

A Zambrano application centres on a person seeking to remain in the UK as the primary carer of a British citizen.

There is significant overlap with the right to respect for private and family life which is protected by Article 8 of the European Convention on Human Rights(ECHR).

Where a person wishes to remain in the UK on the basis of family life with a British citizen, they can make an application for leave to remain under Appendix FM to the Immigration Rules. A derivative right to reside is a right of last resort which only applies of a person has no other means to remain lawfully in the UK.

Your application is refused for the following reasons:

• (Since your most recent refused application in which Appendix FM was considered, there have been significant changes in your circumstances and it is open to you to re-apply under the UK’s domestic immigration law)

• (You have previously been granted LTR under the UK’s domestic immigration law. As your circumstances have not changed, you are invited to re-apply to continue on the route to settlement in the UK)

Next Steps

You have a right of appeal against this decision under regulation 36 of the 2016 Regulations.

This appeal may be brought before the First -tier Tribunal(Immigration and Asylum Chamber(IAC)) while you are in the UK and may continue while you are outside of the UK if necessary. You have 14calender days from the date this decision was sent to appeal.

If you do not wish to appeal but consider that you have further evidence to prove that you have a right of residence, you can make a further application”.

Patel before the Supreme Court

It is not apparent currently how correct the Home Office are in relying upon this guidance, which is quite recent. Patel was appealed to the Supreme Court and it is understood that the appeal was heard on 7 May 2019 and judgement is awaited. The new Guidance was published on 2 May 2019, only a few days before the appeal was heard. If the Supreme Court judgment does not bear upon the effect of the new Guidance, then no doubt some interesting litigation is very likely to ensue in future.

Options

Meanwhile, the following may be the options available following receipt of a refusal decision:

• appeal the refusal decision timely, raising effective grounds of appeal thereby preserving the continuing right to work granted by the Certificate of Application. Whilst awaiting listing of the appeal hearing date, re-visit  consideration of other options carefully without the pressures of needing to meet any deadlines.

• appeal the decision and argue that the Home Office interpretation of Patel as per the construction in their Guidance is incorrect, etc(but also provide reasons why resort has not been had to Appendix FM and why a fee waiver application cannot be made).

• appeal the refusal decision but potentially be met with a dismissal of the appeal by the Tribunal on the basis that the effect of the Patel case as interpreted by the Home Office is correct.

• submit an application to the Home Office relying on Appendix FM/Article 8 but apply for a few waiver, providing relevant documentation and information in this regards.

• submit an application to the Home Office relying on Appendix FM/Article 8 and provide the relevant Home Office application fees and NHS Surcharge

• consider judicial review proceedings, if the given right of appeal is not an adequate or sufficient remedy having regard to the issues in play