(1).ARTICLE 8 OF THE ECHR AND PARAGRPAH 276ADE(1) OF THE IMMIGRATION RULES
Article 8 of the ECHR provides as follows:
“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Since 9 July 2012, the Immigration Rules have contained a new framework for considering applications and claims engaging Article 8 of the ECHR (the right to respect for private and family life). The rules are considered to reflect the qualified nature of Article 8, setting requirements which properly balance the individual right to respect for private or family life with the public interest in safeguarding the economic well-being of the UK by controlling immigration, in protecting the public from foreign criminals and in protecting the rights and freedoms of others.
Paragraph 276ADE(1) of the Immigration Rules provides the basis on which a person can apply for leave to remain in the UK on private life grounds. These rules, together with the Guidance on exceptional circumstances, Family life (as a partner or parent), private life and exceptional circumstances, are considered by the Secretary of State to provide a basis for considering immigration cases in compliance with ECHR Article 8.
(2).WHAT DOES PARAGRAPH 276ADE(1) OF THE RULES SAY?
The requirements to be met by an applicant for leave to remain on the grounds of private life are found in Part 7 of the Immigration Rules.
The requirements to be met under the 10-year private life route are set out in paragraph 276ADE (1) and 276ADE(2) of the Immigration Rules.
Paragraph 276ADE (1) provides as follows:
“276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK”.
(3). IS THE 5YEAR ROUTE TO SETTLEMENT APPLICABLE TO PRIVATE LIFE CLAIMS?
The route to settlement (5-year or 10-year) an applicant can qualify for, depends on whether all, some or no eligibility requirements are met.
Appendix FM provides 2 routes to settlement on the basis of family life as a partner or parent. These are a 5-year route and a 10-year route where:
• the 5-year route is for a partner, parent or child who meets all the suitability and eligibility requirements of the Immigration Rules at every stage
• the 10-year route is for:
o a partner, parent or child who meets all family life suitability and certain eligibility requirements and EX.1. applies under Appendix FM
o those who meet all private life suitability and relevant eligibility requirements under Part 7 paragraph 276ADE(1)
o those who have exceptional circumstances
All eligibility requirements must be met for a partner to qualify for entry clearance or leave to remain on the 5-year route. Otherwise to qualify for entry clearance or leave to remain on a 10-year route:
• an applicant must meet all eligibility requirements, and rely on other sources of income to meet the financial eligibility requirement because there are exceptional circumstances in accordance with GEN.3.1. of Appendix FM
• an applicant must meet some and qualify for an exception to the other requirements because EX.1.(a) or (b) of Appendix FM applies
• an applicant meets some or no eligibility requirements but there are exceptional circumstances in accordance with paragraph GEN.3.2. of Appendix FM
All eligibility requirements must be met for a parent to qualify for entry clearance or leave to remain on the 5-year route. Otherwise to qualify for entry clearance or leave to remain on a 10-year route:
• an applicant must meet all eligibility requirements, and rely on other sources of income to meet the adequate maintenance and accommodation eligibility requirements because there are exceptional circumstances in accordance with GEN.3.1. of Appendix FM
• an applicant meets some, but qualifies for an exception to certain eligibility requirements because EX.1.(a) of Appendix FM applies
• an applicant meets some or no eligibility requirements but there are exceptional circumstances in accordance with paragraph GEN.3.2. of Appendix FM
Where an applicant meets the requirements for leave to remain on the basis of private life in the UK under paragraph 276ADE(1), the applicant will be granted leave to remain for a period of 30 months on the basis of private life under 276BE(1) of Part 7 of the Immigration Rules.
A person who is outside the UK cannot make an application to enter the UK on the basis of their private life in the UK. The private life route is a 10-year route. There is no 5-year route to settlement for those who seek to rely on their private life to remain in the UK.
(4).WHAT IS THE TWO-STAGE APPROACH IN CONSIDERATION OF PRIVATE LIFE CLAIMS?
A Home Office decision maker is required to first ensure that where there is a family, that consideration is given to family life in accordance with Appendix FM of the Immigration Rules including on the basis of exceptional circumstances in accordance with GEN.3.1. to GEN.3.3. of Appendix FM, before going on to consider the private life for each individual included in the application or claim.
There is a two-stage approach in considering an application under the private life Immigration Rules:
- Consideration “within” the Rules: – An applicant must meet all private life suitability and relevant eligibility requirements under Part 7 paragraph 276ADE(1). Where those Immigration Rules are met, leave under the relevant rules should be granted on a 10-year route to settlement.
- Consideration “outside” the Rules:- If an applicant does not otherwise meet the relevant requirements of those Immigration Rules, the Home Office decision-maker is required to move on to consider, outside the rules in the case of an application for leave to remain made solely on the basis of private life in the UK, whether, in the light of all the information and evidence provided by the applicant, there are exceptional circumstances which could or would render refusal a breach of ECHR Article 8 because it would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from the information provided by the applicant would be affected. If there are such exceptional circumstances, and any other relevant requirements are met, leave to remain should be granted on a 10-year route to settlement outside the rules on the basis of private life. If not, the application is likely to be refused.
(5). GENERAL GROUNDS OF REFUSAL-HOW DO THEY APPLY?
The Immigration Rules, Part 9, have 2 types of refusal on general grounds and it will depend on the reasons being used to refuse as to how a Home Office decision maker considers the application.
If it is a mandatory ground for refusal, the application must be refused.
If it is a discretionary ground for refusal then the decision maker can consider whether the circumstances allow the use of their discretion.
Applicants applying as a partner or parent under Appendix FM or on the basis of private life under paragraph 276ADE(1) of the Immigration Rules are not subject to the general grounds for refusal, except in the limited categories set out at rule A320 in Part 9 of the Immigration Rules.
Applicants applying for leave to remain on the basis of private life under paragraph 276ADE(1) of the Immigration Rules are only subject to the provisions in paragraph 322(1) of the general grounds for refusal. This provision only applies to applications for leave to remain, variation of leave to enter or remain or curtailment of leave. Under paragraph 322(1) of the Rules, an application is to be refused on the basis that leave to remain is being sought for a purpose not covered by the Immigration Rules.
The fact that a person does not meet the Immigration Rules does not mean that there are no rules which apply. A Home Office decision maker must only use paragraph 322(1) to refuse an applicant who has specifically applied for leave outside the rules.
(6). SUITABLITY REQUIREMENTS-HOW DO THEY APPLY?
To meet the requirements of Paragraph 276ADE(1)(i) an applicant must not fall for refusal under S-LTR: Suitability.
In 10-year private life route cases, the applicant must not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM.
Any applicant who falls for refusal under suitability will not be able to meet the requirement of Paragraph 276ADE(1)(i), and will therefore not be granted leave under the Rules, regardless of whether they meet the requirements of paragraphs 276ADE(1)(ii) to (vi).
Where an application WILL be refused:
Paragraphs S-LTR.1.2. to 1.8. provide an application WILL be refused on grounds of suitability where the following applies:
- the applicant is currently the subject of a deportation order.
- the presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years.
- the presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for less than 4 years but at least 12 months, unless a period of 10 years has passed since the end of the sentence; or
- the presence of the applicant in the UK is not conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law.
- the presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-LTR.1.3. to 1.5.), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.
Including where the applicant has failed without reasonable excuse to comply with a requirement to-
(a) attend an interview;
(b) provide information;
(c) provide physical data; or
(d) undergo a medical examination or provide a medical report.
Where the presence of the applicant in the UK is not conducive to the public good because the Secretary of State:
(a) has made a decision under Article 1F of the Refugee Convention to exclude the person from the Refugee Convention or under paragraph 339D of the Rules to exclude them from humanitarian protection; or
(b) has previously made a decision that they are a person to whom Article 33(2) of the Refugee Convention applies because there are reasonable grounds for regarding them as a danger to the security of the UK; or
(c) considers that they are a person to whom sub-paragraph (a) or (b) would apply except that (i) the person has not made a protection claim, or (ii) the person made a protection claim which has already been finally determined without reference to Article 1F of the Refugee Convention or paragraph 339D of the Rules; or
(d) has previously made a decision that they are a person to whom Article 33(2) of the Refugee Convention applies because, having been convicted by a final judgment of a particularly serious crime, they constitute a danger to the community of the UK.
Where an application WILL NORMALLY be refused:
Paragraph S-LTR.2.1. provides that an applicant WILL NORMALLY be refused on grounds of suitability if any of paragraphs S-LTR.2.2. to 2.5. apply:
Whether or not to the applicant’s knowledge –
(a) false information, representations or documents have been submitted in relation to the application (including false information submitted to any person to obtain a document used in support of the application); or
(b) there has been a failure to disclose material facts in relation to the application.
A maintenance and accommodation undertaking has been requested under paragraph 35 of these Rules and has not been provided.
The Secretary of State has given notice to the applicant and their partner under section 50(7)(b) of the Immigration Act 2014 that one or both of them have not complied with the investigation of their proposed marriage or civil partnership.
When considering whether the presence of the applicant in the UK is not conducive to the public good any legal or practical reasons why the applicant cannot presently be removed from the UK must be ignored.
Where an application MAY be refused:
Paragraph S-LTR.4.1. provides that an applicant MAY be refused on grounds of suitability if any of paragraphs S-LTR.4.2. to S-LTR.4.5. apply:
- the applicant has made false representations or failed to disclose any material fact in a previous application for entry clearance, leave to enter, leave to remain or a variation of leave, or in a previous human rights claim; or did so in order to obtain from the Secretary of State or a third party a document required to support such an application or claim (whether or not the application or claim was successful).
- the applicant has previously made false representations or failed to disclose material facts for the purpose of obtaining a document from the Secretary of State that indicates that he or she has a right to reside in the United Kingdom.
- the applicant has failed to pay litigation costs awarded to the Home Office.
- one or more relevant NHS bodies has notified the Secretary of State that the applicant has failed to pay charges in accordance with the relevant NHS regulations on charges to overseas visitors and the outstanding charges have a total value of at least £500.
Where an applicant will normally be refused if they fail to meet the suitability requirements, or may be refused if they fail to meet these suitability requirements, the Home Office decision maker is required to look at the nature of the suitability issues being considered in the context of the application as a whole, and decide whether those issues are sufficiently serious to refuse on the basis of suitability (bearing in mind that anything which comes within these criteria should normally or may be refused) or whether there are compelling reasons to decide that the applicant meets the suitability criteria. This will be a case-specific consideration.
If the applicant falls for refusal on the grounds of suitability, the application will be refused unless it falls to be granted on the basis of exceptional circumstances.
In light of Secretary of State for the Home Department v Balajigari and Others [2019] EWCA Civ 673, an applicant should be given the opportunity to respond to an allegation, that means the applicant will fall for refusal on grounds of suitability, before the application is finally decided.
It is not possible for foreign criminals relying on private life grounds to circumvent the provisions of the Rules dealing with deportation of foreign criminals: “…..the suitability requirements are an integral part of paragraph 276ADE. Being able to meet the requirements of paragraph 276ADE of the Immigration Rules requires being able to meet the suitability requirements set out in paragraph 276ADE(i). It is because this subparagraph contains suitability requirements that it is not possible for foreign criminals relying on private life grounds to circumvent the provisions of the Rules dealing with deportation of foreign criminals” {5} Bossadi (paragraph 276ADE; suitability; ties) [2015] UKUT 00042 (IAC)
(7). HOW TO SUBMIT A VALID APPLICATION
An applicant must have made a valid application for leave to remain on the grounds of private life in the UK. If the application is rejected as invalid for failure to meet the requirements of the relevant Immigration Rules, it will not be considered by the Secretary of State.
Circumstances in which there no requirement to submit a valid Article 8 application
Paragraph 276A0 of the Immigration Rules however provides that:
“For the purposes of paragraph 276ADE(1) the requirement to make a valid application will not apply when the Article 8 claim is raised:
(i) as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;
(ii) where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention; or
(iii) in an appeal (subject to the consent of the Secretary of State where applicable)”.
Where the above applies, this means in essence that neither completion of an application form nor provision of Home Office application fees nor the NHS Health surcharge is required to be provided. A claimant need only provide effective representations in support of the claim setting out reasons why they should be permitted to remain in the UK, supportive evidence and any other information required by the Secretary of State during the consideration of the claim.
It is important however to note that a person who has made a claim a claim for leave on the basis of Article 8 and who is not required to make a valid application can only be considered for leave to remain under the 10-year partner, parent or private life route to settlement. If the person wishes to be considered under the 5-year partner or parent route, they must submit a valid application.
Submitting a valid Article 8 application
Home Office Guidance, Applications for leave to remain: validation, variation and withdrawal, explains how an application for leave to remain in the UK is made valid, and what to do if it is not. It also describes how an applicant can change the purpose of an application, withdraw an application and calculate the date of an application.
Changes have been made to this guidance to reflect amendments to the rules in October 2018 on the requirements for a valid application and to support the operation of the new application process introducing the UK Visas Citizenship Application Service (UKVCAS) and Support Centres (SSC) in UK Visas and Immigration (UKVI).
An application for leave to remain in the UK is valid when the requirements of paragraph 34 of the Immigration Rules are met, or where one of the exceptions set out in paragraph 34 apply. The requirements must be met by each applicant:
Specified application form:– Paragraph 34(1) of the rules sets out that the application must be made on a specified application form. The application form must be specified for the immigration route under which the applicant is applying. The relevant form in relation to an application under the private life Rules is Form FLR(FP). The application must be made online. The date of application for an online application is the date it is submitted using the online process.
Application fee:– Each applicant must pay any relevant fee for their application in full and according to the process set out on the form. The current Home Office application fee is £1033.00 per applicant. An additional sum of £19.20 will be required in relation to biometrics enrolment. Fees regulations provide for the Home Office to retain an administration fee when rejecting an application as invalid. Where the fee has been paid but the application is invalid, the Home Office caseworker is required to reject the application and process a refund for the application minus £25 per person included in the application form. If an incorrect fee has been paid and the application is rejected as invalid, an administration fee is retained against the incorrect fee. An administration fee cannot be retained if an application is void, withdrawn before enrolment of biometrics (where the Home Office refund the fee paid) or the applicant has died. Some applicants can apply for a fee waiver or qualify for a fee exemption. The most common is the fee waiver for particular human rights based applications, including Article 8 claims. Home Office Guidance: Fee waiver: Human Rights-based and other specified applications provides the circumstances in which applicants will qualify for a fee waiver in respect of certain types of leave to remain applications.
Immigration Health Surcharge:– The Immigration Health Charge (IHC), often referred to as the ‘immigration health surcharge’ (IHS), was introduced on 6 April 2015. All applications submitted on or after this date, including applications to vary those made before 6 April 2015, must include payment of the IHS unless the applicant is exempt. The IHS is refunded if an application for leave to enter or remain is refused, rejected, withdrawn or void.
The current sums required in relation to the IHS as regards private life claims is £1000.00 per applicant. The fee is due to rise in October 2020.
Consent for applicants who are under 18 years old:– If the applicant is under the age of 18, and not a dependant on an adult’s application, then their parent or guardian must provide their written consent to the application.
Proof of identity:– Paragraph 34 sets out that an applicant must provide proof of identity, in order of preference:
• a valid passport
• a valid national identity card – this option is not available for PBS applicants
• their most recent passport – this is the last one they held if no longer valid
• their most recent national identity card – this is the last one they held if no longer valid
• a valid travel document – this means a document, other than a passport or nationality identity card, which has been issued by the government of the UK or another state and which enables travel from one country to another
If the Home Office has the applicant’s proof of identity on the date of application, then the applicant will be unable to provide it with the application and the application is not required to be rejected as invalid on this basis.
Problems with proof of identity?
If the applicant’s proof of identity has been lost or stolen, the applicant will be expected to have contacted the relevant authorities to request a replacement. Where an applicant has not done this and so does not have a replacement, or an alternative document listed under paragraph 34, then the Home Office Caseworker may ask the application to provide the reason why they have not sought to replace their proof of identity. Where the applicant states their proof of identity has been stolen, they will be expected to provide a crime reference number with their application if possible.
Paragraph 34(5)(c) of the rules sets out that an applicant can provide a good reason beyond their control why they cannot provide any proof of identity. Reasons may include the following (this list is not exhaustive):
• there is no longer a functioning national authority to provide a new document
• there is no Embassy or consular service for their country in the UK
• there is a national authority to apply for a document, but they have run out of documents
• the applicant has made an application for a replacement document, but the issuing authority was not able to provide it before the application was made
• the applicant cannot obtain a document for reasons of national or personal security
• the national authority has unreasonably refused to provide a document, for example, if the national authority: o will only provide a passport if the applicant applies in person but there is no provision to apply in person in the UK o puts unreasonable barriers in place for the applicant
Paragraph 34(6) of the Rules states that a Home Office Caseworker may ask the applicant to provide alternative satisfactory evidence of their identity and nationality. For example, this could be a combination of:
• birth certificate
• driving licence
• national health card
• national service document
If an applicant has not provided proof of identity, and no exception applies, a Home Office Caseworker may write to an applicant by using a validation warning and give them 10 working days to provide proof of identity. If they do not do so, the application will normally be rejected as invalid
Biometrics enrolment
An application will not be accepted as valid if the applicant has not provided their biometric information and none of the exceptions apply.
For further detail as regards the new online application process, a previous blog post can be considered: Part 2: How not to fall foul of the new application process and ensure a valid Home Office application
(8). WHAT DOES “CONTINUOUS RESIDENCE” MEAN?
Paragraph 276ADE(1) requires an applicant to have had a designated length of continuous residence in the UK.
This is relevant where an applicant seeks to show that they have:
- lived continuously in the UK for at least 20 years- 276ADE(1)(iii), or
- lived continuously in the UK for at least 7 years – 276ADE(1)(iv), or
- are aged 18 years or above and under 25 years and spent at least half of their life living continuously in the UK- 276ADE(1)(v), or
- where the 20year Rule is not satisfied, the applicant is required to show they lived continuously in the UK for less than 20 years but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK – 276ADE(1)(vi)
“Continuous residence” is defined in paragraph 276A(a) of the Immigration Rules as:
“(a) “continuous residence” means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:
(i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or
(ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or
(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or
(iv) has been convicted of an offence and was sentenced to a period of imprisonment or was directed to be detained in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), provided that the sentence in question was not a suspended sentence; or
(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question”.
“Lived continuously or living continuously” is defined in paragraph 276A(c) of the Immigration Rules as:
“lived continuously” and “living continuously” mean “continuous residence”, except that paragraph 276A(a)(iv) shall not apply.”
The relevant Guidance, Family life (as a partner or parent), private life and exceptional circumstances, states that a period of time spent in prison will not break the continuous residence of an applicant applying on the basis of their private life in the UK. Rather, time spent in prison will not be counted towards the period of residence, but time before and after that imprisonment can be aggregated to make up the full amount of time.
(9).TIMING OF THE APPLICATION
Paragraph 276ADE (1) is clear that the requirements of the Rule are to be met by an applicant at the date of application.
This means for example that an applicant must first accrue the requisite 20years or 7years residence before submitting an application for leave to remain placing reliance upon Paragraph 276ADE (1).
Where an application is submitted, say, where a child has only resided continuously in the UK for 6years and 11months, the application will not be caught by paragraph 276ADE (1) in relation to the 7year Rule. The application will be considered by the Secretary of State outside the Rules on Article 8 grounds. It is irrelevant that by the time the application is considered the child would have acquired the required 7years- the application will not be considered by reference to the 7year Rule. Where the application is considered outside the Rules, a grant of leave may result or the application may be refused.
If an application is submitted prematurely and then refused by the Secretary of State after the child has turned 7years of age, at a subsequent appeal reliance can be placed on the child’s 7years residence in the UK rather than the 7year Rule – this time with the parent placing reliance on Section 117B(6) of the 2002 Act as opposed to Paragraph 276ADE(1)(iv). As per MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705:
“2. The contexts in which the issues arise are rule 276ADE(1)(iv) of the Immigration Rules and section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). In the former case the application for leave is brought under the rule by the child; in the latter, it is a claim brought outside the Immigration Rules by a parent under article 8 ECHR. In each case persons exercising a parental role (and other siblings) may be entitled to stay with the child in the UK in circumstances where they would not qualify for leave in their own right, independently of their status as parents. In effect they may be able to piggy back on the rights of the child. In each case the child in question must have been living in the UK for more than seven years in order for the provisions to bite.
Additionally, where the relevant continuous residence requirement is not met at the date of refusal by the Secretary of State but is fulfilled by the date of appeal, as per TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109, where Article 8 is engaged, satisfying the Immigration Rules also means that removal is disproportionate:
(10). THE TYPE OF EVIDENCE REQUIRED TO DEMONSTRATE LENGTH OF RESIDENCE
To demonstrate length of residence in the UK, the Guidance, Family life (as a partner or parent), private life and exceptional circumstances, provides:
“Evidence of residence
To demonstrate length of residence in the UK, applicants will need to provide evidence of their residence here for the period they seek to rely on.
Official documentary evidence from official or independent sources, that show ongoing contact over a period of time, for example from a housing trust, local authority, bank, school or doctor, will be given more weight in the decision-making process than evidence of one-off events. You must be satisfied the evidence provided has not been tampered with or otherwise falsified, and that it relates to the person who is making the application.
To be satisfied that the UK residence was continuous, you should normally expect to see evidence to cover every 12-month period of the length of claimed continuous residence, and passports or travel documents to cover the entire period, unless satisfied on the basis of a credible explanation provided as to why this has not been submitted”.
Providing non-official “independent” documents to prove continuous residence:
Khan, R (on the application of) v Secretary of State for the Home Department [2016] EWCA Civ 416, provides:
57.(i) Long continuous residence: The Secretary of State’s decision was that the evidence in the letters from friends and neighbours was not acceptable evidence of residence in the UK: see [17] above. The position was maintained in the acknowledgement of service and summary grounds dated 2 October 2013, where the Secretary of State maintained that she was “plainly entitled to define the information required to substantiate an applicant’s period of residence in the UK and that a restriction to official documents is plainly reasonable”.
58.At the hearing before us, Mr Lewis acknowledged that a restriction providing that only official documents were acceptable evidence could not be defended. It was accepted on behalf of the Secretary of State that the statement in the decision letter that she would not consider such evidence was an error of law. It is not clear whether this was the reason that shortly before the hearing the Secretary of State withdrew her decisions in the two cases to which I referred at [2] above. Mr Lewis accepted that account should have been taken of the evidence before the Secretary of State, but submitted that the evidence put before her by Mr Khan for the period 1998 to 2002 carried little weight.
59.It is, to put it at its lowest, unfortunate that the clarification of the Secretary of State’s position occurred only at the hearing. Mr Ahmed submitted that the failure of the Secretary of State to file a skeleton argument in accordance with the rules was because there was no answer to the issue of principle as to whether the Secretary of State was entitled to define the categories of evidence which would be considered. Whether or not that is so, it was very unsatisfactory that the appellant and the court did not know whether the point was disputed until the afternoon of the hearing.
60.It is understandable that the Secretary of State has sought to put in place procedures to enable her officials to deal with a very large number of applications in a reasonably expeditious manner according to clear objective criteria: see, albeit in the context of the points-based system, EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517 at [28]. But in my judgment, the Secretary of State was correct in not seeking to defend the part of the decision letter in which she stated that there was no evidence of residence in the UK from 1998 to 2001 because there were no official documents to this effect.
61.I leave aside the fact that the guidance enclosed with the letter dated 23 February 2013 appeared to concern marriage/cohabitation applications, a different type of application to Mr Khan’s. I focus on what was stated in the letter itself. First, as Mr Lewis accepted, there is no authority for such a restriction in legislation or the Immigration Rules. Secondly, as recognised, for example in ZH (Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 8 at [3], the 14 year rule set out in Rule 276B(i)(b) is specifically directed to people who have managed to stay in the United Kingdom for 14 years or more without lawful authority, and is in effect an amnesty clause. It is likely that those in the United Kingdom without leave, and therefore without status, will have no official documentation, particularly in the early period of their residence. Thirdly, although most of the documents listed by the Secretary of State can be classified as “official” in the sense that they are from institutions and not individuals, a tenancy agreement and a letter from a landlord, which are listed, are difficult to classify as “official”.
Although the 14year rule is no longer in operation, having been replaced by the 20year rule, the same reasoning equally applies in this regards in relation to submission of evidence going towards continuous residence. Having regard to paragraph 276ADE(1) and the several categories listed therein in relation to private life issues, both official and reliable non – official documentary evidence can be submitted in applications or appeals.
Effectively prepared letters or statements of support, backed by documentary evidencing the friend or neighbour’s identity and immigration status in the UK as well as recent proof of residence, can be presented seeking to confirm a claimant’s continuous residence in the UK.
(11).THE RELEVANT HEADS OF CLAIM
The 20year Rule:
Paragraph 276ADE(1)(iii) sets out the criteria to be applied, together with the other requirements of the rules, in assessing whether to grant leave to remain to an applicant on the basis of 20 years’ continuous residence. To meet this requirement, an applicant must have lived continuously in the UK for at least 20 years at the date of application, discounting any period of imprisonment.
In relation to settlement, as per MBT, R (on the application of) v Secretary of State for the Home Department (restricted leave; ILR; disability discrimination) [2019] UKUT 414 (IAC):
“(iii) To obtain indefinite leave to remain under the Immigration Rules on the basis of long (partially unlawful) residence in cases involving no suitability concerns, paragraph 276ADE(1)(iii), taken with paragraph 276DE, requires a total of 30 years’ residence. A person who satisfies paragraph 276ADE(1)(iii) following 20 years’ residence is merely entitled to 30 months’ limited leave to remain on the ten year route to settlement”.
The 7year Rule:
Paragraph 276ADE(1)(iv) sets out the criteria to be applied, together with the other requirements of the rules, in assessing whether to grant leave to remain to an applicant who is under the age of 18 on the basis of their private life.
To meet these requirements, a child under 18 must have lived continuously in the UK for at least 7 years at the date of application, discounting any period of imprisonment, and it would not be reasonable to expect that child to leave the UK.
The Home Office decision maker will be required to have regard to the best interests of the child as a primary consideration (but not the only or the paramount consideration). They must fully consider the child’s best interests.
The Home Office decision-maker must assess under paragraph 276ADE(1)(iv):
- firstly, whether refusal of the application will mean that the child will have to leave the UK or is likely to have to do so:
- if so, secondly, whether, taking into account their best interests as a primary consideration, it is reasonable to expect the child to leave the UK- in so doing there must be careful consider of all the information provided by the applicant, together with any other relevant information of which the decision maker is aware
In summary, in relation to the best interests of a child, the following applies:
- A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent: see Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 at [10] per Lord Hodge. There must be a full consideration of all relevant factors.
- The Court of Appeal developed the context for any assessment of the best interests of a child in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874 in these terms, at [58]: “…the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?”
- The “real world” context test was endorsed by the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 at [19].
As regards the “Reasonableness test, the Secretary of State’s Guidance, Family life (as a partner or parent), private life and exceptional circumstances, currently provides:
“Is it reasonable for the child to leave the UK?
Where you decide that the answer to this first stage is yes – there is a genuine and subsisting relationship to a child, then they must go on to consider secondly, whether, taking into account the child’s best interests as a primary consideration, it is reasonable to expect the child to leave the UK. In doing so you must carefully consider all the information provided by the applicant, together with any other relevant factor and information of which you are aware.
In accordance with the findings in the case of AB Jamaica (Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661), consideration of whether it is reasonable to expect a child to leave the UK must be undertaken regardless of whether the child is actually expected to leave the UK.
The starting point is that we would not normally expect a qualifying child to leave the UK. It is normally in a child’s best interest for the whole family to remain together, which means if the child is not expected to leave, then the parent or parents or primary carer of the child will also not be expected to leave the UK.
In the caselaw of KO and Others 2018 UKSC53, with particular reference to the case of NS (Sri Lanka), the Supreme Court found that “reasonableness” is to be considered in the real-world context in which the child finds themselves. The parents’ immigration status is a relevant fact to establish that context. The determination sets out that if a child’s parents are both expected to leave the UK, the child is normally expected to leave with them, unless there is evidence that that it would not be reasonable.
This assessment must take into account the child’s best interests as a primary consideration.
You must carefully consider all the relevant points raised in the application and carefully assess any evidence provided. Decisions must not be taken simply on the basis of the application’s assertions about the child, but rather on the basis of an examination of all the evidence provided. All relevant factors need to be assessed in the round.
There may be some specific circumstances where it would be reasonable to expect the qualifying child to leave the UK with the parent(s). In deciding such cases you must consider the best interests of the child and the facts relating to the family as a whole. You should also consider any specific issues raised by the family or by, or on behalf of the child (or other children in the family).
It may be reasonable for a qualifying child to leave the UK with the parent or primary carer where for example:
the parent or parents, or child, are a citizen of the country and so able to enjoy the full rights of being a citizen in that country
• there is nothing in any country specific information, including as contained in relevant country information which suggests that relocation would be unreasonable
• the parent or parents or child have existing family, social, or cultural ties with the country and if there are wider family or relationships with friends or community overseas that can provide support:
o you must consider the extent to which the child is dependent on or requires support from wider family members in the UK in important areas of their life and how a transition to similar support overseas would affect them
o a person who has extended family or a network of friends in the country should be able to rely on them for support to help (re)integrate there
o parent or parents or a child who have lived in or visited the country before for periods of more than a few weeks. should be better able to adapt, or the parent or parents would be able to support the child in adapting, to life in the country
o you must consider any evidence of exposure to, and the level of understanding of, the cultural norms of the country
o for example, a period of time spent living amongst a diaspora from the country may give a child an awareness of the culture of the country
o the parents or child can speak, read and write in a language of that country, or are likely to achieve this within a reasonable time period
o fluency is not required – an ability to communicate competently with sympathetic interlocutors would normally suffice
• removal would not give rise to a significant risk to the child’s health
• there are no other specific factors raised by or on behalf of the child
The parents’ situation is a relevant fact to consider in deciding whether they themselves and therefore, their child is expected to leave the UK. Where both parents are expected to leave the UK, the natural expectation is that the child would go with them and leave the UK, and that expectation would be reasonable unless there are factors or evidence that means it would not be reasonable”.
Previous blog posts referring to relevant caselaw in relation to the 7year Rule and the inbuilt “reasonableness test” is set out below:
- 7 Year Children Rule: Court of Appeal Clarifies the Correct Approach to the Reasonableness Test
- Children’s residence in the UK: Facets of the 7Year Rule
- The 7year Rule and parental misconduct: Overstaying, failed asylum claim and use of false documents not fatal to claim decides the Upper Tribunal
- The Supreme Court on the correct approach to parental misconduct and the reasonableness and unduly harsh tests
- Court of Appeal endorses Upper Tribunal in JG on interpretation of section 117B(6)(b): Reasonable to expect a child to leave the UK and parental relationship
In MM (section 117B(6) – EU citizen child) [2020] UKUT 224 (IAC), the Upper Tribunal recently concluded as per the Headnote:
2. The non-inclusion of EU citizen children resident for less than seven years in the definition of “qualifying child” does not breach the EU law prohibition against discrimination on grounds of nationality”.
Young Adults aged 18 to 24:
Paragraph 276ADE(1)(iii) sets out the criteria to be applied, together with the other requirements of the rules, in assessing whether to grant leave to remain to an applicant who is aged between 18 and 24, on the basis of their private life.
To meet these requirements, an applicant aged between 18 and 24 must have lived continuously in the UK for at least half their life at the date of application, discounting any period of imprisonment.
Adult with less than 20years continuous residence and the ‘very significant obstacles to integration” test
Paragraph 276ADE(1)(vi) of the Immigration Rules, allows an applicant who is over the age of 18 and who has lived continuously in the UK for less than 20 years, to meet the requirements of this rule if they can demonstrate that at the date of application there would be very significant obstacles to the applicant’s integration into the country to which they would have to go if required to leave the UK.
(12). CONSIDERATION OF THE “VERY SIGNIFICANT OBSTACLES TO INTERGRATION” TEST
Meaning of the very significant obstacles to integration- a high threshold
The relevant Home Office Guidance, Family life (as a partner or parent), private life and exceptional circumstances, states:
“Assessing whether there are ‘very significant obstacles to integration into’ the country of return
………………….
When assessing whether there are ‘very significant obstacles to integration into the country to which they would have to go if required to leave the UK’, the starting point is to assume that the applicant will be able to integrate into their country of proposed return, unless they can demonstrate why that is not the case. The onus is on the applicant to show that there are very significant obstacles to that integration, not on you to show that there are not.
You should expect to see independent and verifiable documentary evidence of any claims made in this regard, and must place less weight on assertions which are unsubstantiated. Where it is not reasonable to expect corroborating evidence to be provided, you must consider the credibility of the applicant’s claims.
A ‘very significant obstacle to integration’ means something which would prevent or seriously inhibit the applicant from integrating into the country of return. You are looking for more than the usual obstacles which may arise on relocation (such as the need to learn a new language or obtain employment). They are looking to see whether there are ‘very significant’ obstacles, which is a high threshold. Very significant obstacles will exist where the applicant demonstrates that they would be unable to establish a private life in the country of return, or where establishing a private life in the country of return would entail very serious hardship for the applicant”.
Very significant obstacles test- is country information taken into account by the Home Office?
Background country information should be taken into account by the decision maker.
The Guidance, Family life (as a partner or parent), private life and exceptional circumstances, further provides:
“Assessing whether there are ‘very significant obstacles to integration into’ the country of return
……………….
The assessment of whether there are very significant obstacles to integration will generally consider the proposed country of return, unless there is information to suggest that the applicant might have a choice about where they choose to relocate to, such as where they have a right to reside in a country other than the country of proposed return, or where they have more than one nationality. In that case you can take account of whether there are very significant obstacles to integration continuing in any of the relevant countries.
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. A very significant obstacle may arise where the applicant would be at a real risk of prosecution or significant harassment or discrimination as a result of their sexual or political orientation or faith or gender, or where their rights and freedoms would otherwise be so severely restricted as to affect their fundamental rights, and therefore their ability to establish a private life in that country.
You should consider whether the applicant has the ability to form an adequate private life by the standards of the country of return – not by UK standards. You will need to consider whether the applicant will be able to establish a private life in respect of all its essential elements, even if, for example, their job, or their ability to find work, or their network of friends and relationships may be differently constituted in the country of return.
The fact the applicant may find life difficult or challenging in the country of return does not mean that they have established that there would be very significant obstacles to integration there. You must consider all relevant factors in the person’s background and the conditions they are likely to face in the country of return in making their decision as to whether there are very significant obstacles to integration”.
Very significant obstacles test: factors the Home Office take into account
The Home Office decision maker is required to consider any specific obstacles raised by the applicant. They will also need to set these against other factors in order to make an assessment in the individual case.
Relevant factors referred to within the Guidance, Family life (as a partner or parent), private life and exceptional circumstances, include:
- Cultural background
- Length of time spent in the country of return
- Family, friends and social network
- Faith, political or sexual orientation and gender identity
- Common types of claims
The Guidance provides that the nature and extent of the private life that an individual has established in the UK is not relevant when considering whether there are very serious obstacles to integration into the country of return. However, where the applicant falls for refusal under the rules, this will be relevant when considering whether there are exceptional circumstances which would make refusal unjustifiably harsh for the applicant.
(13). THE TYPES OF CLAIMS WHICH HAVE MET THE ” VERY SIGNIFICANT OBSTACLES TO INTERGRATION” TEST
The Guidance, Family life (as a partner or parent), private life and exceptional circumstances is clear that “very significant obstacles to integration” connote a high threshold, however it is possible to overcome the test, depending on the circumstances of the case as well as the evidence submitted:
Vulnerable severely visually impaired woman returning to Nigeria:
The claimant entered the UK 12years ago. Having stayed in the UK beyond her leave to remain, with her sight having deteriorated significantly over the years following her arrival, years later she put in an application relying on Paragraph 276ADE1(vi).
It was put forward that the claimant, a particularly vulnerability woman, with severe visual impairment, unable to work, returning alone to Nigeria with no family to support her nor provide her with accommodation, would result in very significant obstacles in her ability to integrate to life.
In light of her condition, a lengthy absence of 12years from Nigeria with no one to turn to on return would considerably affect the claimant’s ability to adapt to life in Nigeria.
The significant distress and anxiety on return with the abrupt removal of the support system the claimant had been receiving in the UK, would leave her in a very vulnerable situation.
The background evidence showed that disabled people and those with a visual impairment or are blind are discriminated against or ridiculed, reflecting what happens in practice in Nigeria.
A country expert report as well as a detailed Consultant medical report was presented in support of the claimant’s case.
On appeal, the Tribunal accepted the claim that there would be very significant obstacles to integration in Nigeria having regard to paragraph Paragraph 276ADE1(vi).
Lone elderly widow returning to Pakistan:
A 73 year old widow was previously refused asylum in 2017 on account of her Ahmadi religion on the basis that she would not be at risk on return. She then submitted an Article 8 claim. In a subsequent appeal based on her private and family life in the UK, the focus was Paragraph 276ADE1(vi), ie whether there would be very significant obstacles to reintegration to life in Pakistan, having lived in the UK since 2014.
There was no dispute as to the fact that the Appellant had several British children in the UK, that her physical condition had deteriorated, that she would require assistance from someone to care for her if returned to Pakistan and that there was no evidence her children would not be able to financially support her on her return. It was accepted that any care to be provided to her would be found within the Ahmadi community.
In allowing her appealing, the First Tier Tribunal Judge considered and concluded as follows:
- There was the issue of the Appellant’s religion and how it would affect her integration
- The Home Office country information policy notes showed that “owing to their distinctive and recognisable style of dress, practising Ahmadi women cannot camouflage their religious identity once they step out of their homes….It is not unusual for an Ahmadi woman to get harassed ..This situation often results in gendered discrimination……the situation for Ahmadi women was worse as their social activities and interaction was severely curtailed…..the segregation that women encounter once people know they are Ahmadi is like a form of religious apartheid which impedes their ability to move independently in society, at work and during routine activities like shopping or going to the market.
- In light of the harassment and discrimination Ahmadi women face in Pakistan, this meant total isolation for the Appellant and her carer because of their fear of attacks.
- Further, taking into account the independent social worker’s report as regards the Appellant, the Tribunal found that in view of her age, limited mobility, disabilities and vulnerabilities which had led to her dependency on her adult children with no close family around in Pakistan, compounded with her subjective fear which was objectively founded of being harassed or attached due to her religion, this could lead to depression and would have a negative impact upon her health.
The Tribunal’s conclusion was that the very significant obstacles to integration” test had been met.
Steering an Article 3 medical condition claim to satisfy the “very significant obstacles to integration” test – mental health, stigma and discrimination for a Pakistani woman:
A Pakistan woman in her mid forties, arrived in the UK 16years ago with her husband. The couple had engaged in a love marriage in Pakistan and consequently both had suffered ill-treatment at the hands of her family. Their claim based on fear of honor killing was refused by the Home Office and following three appeals heard between 2010 and 2018, both tiers of the Tribunal concluded that although she was subjected to ill-treatment in Pakistan, issues of risk no longer arose on account of passage of time and there was an option of internal relocation. Meanwhile over the years the Appellant’s health had gradually deteriorated to a significant extent, however this aspect of her claim too had been taken into account by the Tribunal in late 2018 and had been dismissed as it was found that the high threshold in Article 3 medical condition claims could not be met.
Upon mounting a further claim, with her husband as a dependent, which too was refused, as Devaseelan applied, at appeal a different approach became necessary.
A more recent medical report established that the Appellant suffered with recurrent depressive disorder, recurrent episodes of severe psychotic symptoms and post traumatic disorder. The report referred to the Appellant’s symptoms of low mood, hopeless, auditory and visual hallucinations and olfactory hallucinations. She had flash backs of memories of when she was abused and beaten in Pakistan by her family members. She was going through fleeting thoughts of self ham and suicide and her situation was also taking a hold on her husband, her carer who had also begun receiving treatment for mental health issues.
It was argued, amongst other matters at appeal on behalf of the Appellant that she suffered from a serious mental condition.
It was further submitted that background evidence established that there was a risk of stigmatization, social isolation and discrimination which amounted to very significant obstacles to the Appellant’s integration to life in Pakistan.
The First Tier Tribunal allowed the Appellant’s appeal on the following basis:
- The Appellant would not by virtue of being disowned by her family have their support on return
- The accumulation of the factors in the case, including the Appellant having spent 16years in the UK, together with her mental health issues which been considered by psychiatrist as severe with a significant risk of deterioration, together with her clear inability to function without her husband’s constant support and care in relation to every aspect of her life, were factors which cumulatively constituted very significant obstacles to the couple’s integration to life in Pakistan.
- The Judge attached weight to the fact that given the degree of the Appellant’s mental health issues and her inability to communicate and function independently of her husband to any meaningful degree would increase her social and psychological vulnerability in a society where there is in general stigma and discrimination faced by those suffering with mental health issues( by reference to the submitted background evidence).
- The factors, whilst each on their own would not be sufficient to satisfy the test, did cumulatively cause an insurmountable obstacle to the Appellant and her husband’s integration to life in Pakistan.
- In relation to Part 5A of NIAA 2002, it was found that there were compelling reasons that justified the grant of leave outside the Rules. The primary reason that tilted the assessment of proportionality in the Appellants’ favour was her degree of mental health issues, her almost complete dependence on her husband’s constant support and the length of time the Appellant had spent in the UK which had strengthened her connections to the community.
- The particular circumstances of the Appellant’s case did cause significant obstacles to her integration to a normal life in Pakistan, which include discrimination against women as set out in the Country of Information Report as well as the evidence relating to the discrimination faced by people suffering with mental health issues cumulatively, rendered the Appellant’s exclusion a disproportionate interference with private life within the meaning of Article 8 of the ECHR.
The appeal was therefore allowed under the Immigration Rules and on Article 8 of the ECHR.
Gender related harm – Iraq Kurdistan woman:
The appeal raised the following issues on asylum issues:
Fear of being subjected to gender related harm on return to Iraq Kurdistan on account of having arrived in the UK, engaged in a relationship and had a child out of wedlock with a man not approved by the Appellant’s family.
Reliance on the asylum claim was withdrawn on the date of the appeal hearing for various reasons, however despite the appellant having been in the UK for much less than 1year, the Tribunal found that Paragraph 276ADE(1)(vi) applied, ie there would be very significant obstacles to reintegration on return to Kurdistan having regard also to the Country policy and information note Iraq: Kurdish ‘honour’ crimes, which summarizes as follows:
- A person at risk because of an ‘honour’ offence is most likely to be a woman and the risk will usually come from male members of the family or tribe
- Punishments for perceived ‘honour’ offences range from physical abuse, confinement, forced marriage, forced suicide and murder
- Decision makers must consider what the woman has done, or is perceived to have done, for her to fear harm because of a perceived ‘honour’ offence. Such ‘offences’ can include marriages that are not accepted by the family; sex before marriage; friendships that are viewed as inappropriate; being the victim or rape or kidnapping
- A woman at real risk of having an ‘honour’ crime being committed against her will be at risk of serious harm
- The power of tribes and the sympathetic attitude of the authorities towards families mean that enforcement of the law is inadequate
- Kurdish authorities are able but unwilling to provide effective protection to those at risk from ‘honour’ crimes”
- Tribal disputes are mediated and resolved first and foremost through their own mechanisms, such as tribal courts. Tribes are very powerful and are a rival to the formal authorities in the administration of justice and protection
- In cases involving ‘honour’, the tribe is likely to protect the family’s ‘honour’ above the integrity of the individual. A tribe therefore cannot be considered willing (even though they may be able) to provide effective protection in the case of an ‘honour’ offence.
The Tribunal allowed the appeal having regard to Paragraph 276ADE(1)(vi) of the Immigration Rules.
Severely deteriorated country conditions in Zimbabwe and length of stay:
The dire political, social and economic situation in Zimbabwe over the past years and currently, by reference to background evidence, was put forward on behalf of the appellant and that argument found favour with both tiers of the Tribunal on appeal. The Appellant’s current circumstances, his length of stay in the UK(17years) and also the country situation in Zimbabwe therefore contributed substantially to a finding that there were very significant obstacles to integration in Zimbabwe.
See previous blog post for further details: Zimbabwean national with 17years UK residence satisfies the rigorous “very significant obstacles to integration” requirement in both tiers of the Tribunal
(14). CASELAW: CONSIDERATION OF THE VERY SIGNIFICANT OBSTACLES TEST
“integration” is a broad concept- will the claimant be enough of an “insider” in the country of return?
Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813
‘very significant obstacles’ test erects a self-evidently elevated threshold:
Treebhawon and Others (NIAA 2002 Part 5A – compelling circumstances test : Mauritius) [2017] UKUT 13 (IAC)
“37.The two limbs of the test to be addressed are “integration” and “very significant obstacles”. In Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813, the Court of Appeal held that “integration” in this context is a broad concept. See [14]:
“It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a Court or Tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day to day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life”.
The other limb of the test, “very significant obstacles”, erects a self-evidently elevated threshold, such that mere hardship, mere difficulty, mere hurdles and mere upheaval or inconvenience, even where multiplied, will generally be insufficient in this context.
The philosophy and reasoning, with appropriate adjustments, of this Tribunal in its exposition of the sister test “unduly harsh” in MK (Sierra Leone) [2015] UKUT 223 at [46] apply”.
Integration test upheld- it involves a broad assessment including “all relevant factors some of which might be described as generic”
AS v Secretary of State for the Home Department [2017] EWCA Civ 1284
46.At the hearing, neither counsel referred to Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 until invited to do so by the court. Additional written submissions were provided after the hearing
56.As to the second ground of appeal, I do not consider that the UT’s reasoning, when determining the appeal on its merits, was flawed. It is clear that the UT undertook a broad evaluation when determining whether there were very significant obstacles to AS’s integration into Iran and reached a decision which it was entitled to reach. The UT assessed the obstacles to integration and the factors which would facilitate or assist with integration. In carrying out this exercise the UT expressly considered the medical evidence.
60.The UT undertook an assessment which took into account a range of factors including AS’s ability to speak Farsi, his ability to adapt to Iranian culture, his intelligence, his academic abilities and his character. Additionally, given Mr Buley’s submissions in respect of the relevance of the mother’s ties to Iran, it is probably helpful to quote more fully what was said about ties in Ogundimu, paragraph 124 (my emphasis):
“His father may have ties but they are not the ties of the appellant or any ties that could result in support to the appellant in the event of his return there.”
This analysis in Ogundimu, including specifically the latter part of this passage, was expressly approved in YM (Uganda). In any event, the broad evaluation required when the court is considering obstacles to integration can clearly include the extent to which a parent’s ties might assist with integration”.
The integration test was upheld in AS, which confirmed that the new test of integration involves a broad assessment including, “all relevant factors some of which might be described as generic“( such as a person’s ability to adapt to culture, their health, employability and level of education).
‘very significant obstacles’ test – the gloss in Treebhawon criticised by Court of Appeal
Parveen v The Secretary of State for the Home Department [2018] EWCA Civ 932
“8.Since the grant of permission this Court has had occasion to consider the meaning of the phrase “very significant obstacles to integration”, not in fact in paragraph 276ADE (1) (vi) but as it appears in paragraph 399A of the Immigration Rules and in section 117C (4) of the Nationality Immigration and Asylum Act 2002, which relate to the deportation of foreign criminals. In Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813, [2016] 4 WLR 152, Sales LJ said, at para. 14 of his judgment:
“In my view, the concept of a foreign criminal’s ‘integration’ into the country to which it is proposed that he be deported … is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life.”
9.That passage focuses more on the concept of integration than on what is meant by “very significant obstacles”. The latter point was recently addressed by the Upper Tribunal (McCloskey J and UTJ Francis) in Treebhawon v Secretary of State for the Home Department [2017] UKUT 13 (IAC). At para. 37 of its judgment the UT said:
“The other limb of the test, ‘very significant obstacles’, erects a self-evidently elevated threshold, such that mere hardship, mere difficulty, mere hurdles and mere upheaval or inconvenience, even where multiplied, will generally be insufficient in this context.”
I have to say that I do not find that a very useful gloss on the words of the rule. It is fair enough to observe that the words “very significant” connote an “elevated” threshold, and I have no difficulty with the observation that the test will not be met by “mere inconvenience or upheaval”. But I am not sure that saying that “mere” hardship or difficulty or hurdles, even if multiplied, will not “generally” suffice adds anything of substance. The task of the Secretary of State, or the Tribunal, in any given case is simply to assess the obstacles to integration relied on, whether characterised as hardship or difficulty or anything else, and to decide whether they regard them as “very significant”.
Prove destitution by clear evidence:
MA (Prove Destitution) Jamaica CG [2005] UKIAT 00013
“11.Mr Kuranche suggested that the appellant would be destitute in the event of her removal to Jamaica. This is a concerning allegation. We recognise, of course, that a person who faces destitution, or something approaching destitution, may well be entitled to say that her removal is disproportionate to the proper purpose of enforcing immigration control. However, if a person wants to make out that claim even though the standard of proof is a low one, it must be made out by clear evidence. The Adjudicator had before him some evidence from the appellant and her daughter supporting the claim that the appellant would be destitute but the claim was not explained or developed in any detail. We do not know from the evidence how the appellant has supported herself in the United Kingdom for all these years or what opportunity she has had, or taken, to build up capital. Mr Kuranche said that she has been maintained by state benefits. That may be right. We are satisfied Mr Kuranche advanced his instructions in good faith but there was no evidence about that and there was no evidence before the Adjudicator. In any event, is far too superficial to be a proper explanation of the appellant’s maintenance over a period of many years”.
(15).THE TEST TO BE APPLIED WHERE THE VERY SIGNIFICANT OBSTACLES TEST IS NOT MET- CONSIDERATION OUTSIDE THE RULES
Appellants must demonstrate a compelling case in order to displace the public interests inclining towards their removal from the United Kingdom:
Treebhawon and Others (NIAA 2002 Part 5A – compelling circumstances test : Mauritius) [2017] UKUT 13 (IAC)
“38.The finding that Mr Treebhawon’s case does not satisfy the test enshrined in paragraph 276ADE(1)(vi) of the Rules is readily made. If required to leave the United Kingdom, his future will lie in the country of his birth where he has spent most of his life (33 of his 46 years). He is an educated, evidently intelligent man with a command of all of the languages commonly used in Mauritius. He is plainly familiar with the culture of the country. There is no apparent reason why he will be unable to renew certain relationships and friendships and develop others. He has overcome ill health and is now fit for work, albeit we accept that finding employment will not be easy. He has maintained some contact with his mother and sister and we refer to our finding above that, as a matter of probability, he and his children will return to the mother’s home where they lived previously. In sum, the “very significant obstacles” test is not satisfied by some measure. It follows that no error of law has been committed on behalf of the Secretary of State in failing to find that Mr Treebhawon’s case satisfies this (or any) provision of the Rules.
39.The second legal test in play is to be applied to all five Appellants………..
47. We return to the question posed above: what is the legal test to be applied in a case such as the present? The answer, which we deduce from a combination of the governing statutory provisions and, in particular, the decision in Rhuppiah, is that these Appellants must demonstrate a compelling (not very compelling) case in order to displace the public interests inclining towards their removal from the United Kingdom. In formulating this principle, we do not overlook the question of whether the adverb “very” in truth adds anything to the adjective “compelling”, given that the latter partakes of an absolute flavour. It seems to us that the judicially formulated test of “very compelling circumstances” has been driven by the aim of placing emphasis on the especially elevated threshold which must be overcome by foreign national offenders, particularly those convicted of the more serious crimes, who seek to displace the potent public interests favouring their deportation. In contrast, immigrants such as these Appellants confront a less daunting threshold..
51.Our balancing of the salient features of the Appellants’ cases with the public interests engaged, all as set forth above, yields the conclusion that the public interests must prevail. The Appellants’ cases, in combination, unquestionably possess a certain appeal and various attractions. No reasonable or humane court or tribunal could, in our judgement, consider otherwise. Furthermore, we must accord a primacy of importance to that aspect of the third to fifth Appellants’ best interests identified above. However, we consider that the effect of contemporary immigration law is that this superficially seductive case falls short, measurably so, of overcoming the threshold necessary to demonstrate a disproportionate interference with private life rights under Article 8 ECHR. The most sympathetic view of the Appellants’ combined cases – which we have adopted – does not warrant any different conclusion in law. While we are mindful that the Article 8 private life claim of each of these Appellants has its distinctive personal features, given their different ages and circumstances, we find nothing to warrant a different conclusion in respect of any of the Appellants individually”.
(16). WHETHER EXCEPTIONAL CIRCUMSTANCES EXIST SUCH THAT REFUSAL OF LEAVE COULD CONSTITUTE A BREACH OF ARTICLE 8 ECHR
In every case that otherwise falls for refusal under the private life Immigration Rules, the Home Office decision maker is required to move on to consider whether in light of all the information and evidence provided by the applicant, 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.
Where the application has been considered solely on the basis of private life in the UK under paragraph 276ADE(1) – DH, the decision maker must consider whether there are such exceptional circumstances outside the Immigration Rules.
What does ‘exceptional circumstances’ mean?
Guidance, Family life (as a partner or parent), private life and exceptional circumstances, clarifies:
‘Exceptional circumstances’ means circumstances which could or would render refusal of entry clearance or limited leave to remain a breach of ECHR Article 8 (the right to respect for private and family life), because refusal could or would result in unjustifiably harsh consequences for the applicant, their partner or a relevant child, or would result in unjustifiably harsh consequences for another family member whose Article 8 rights it is evident from the application would be affected by a refusal.
‘Exceptional’ does not mean ‘unusual’ or ‘unique’. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in the Immigration Rules have been missed by a small margin.
Instead, ‘exceptional’ means circumstances in which refusal of the application could or would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under Article 8”.
What is the meaning of “unjustifiably harsh consequences” ?
Guidance, Family life (as a partner or parent), private life and exceptional circumstances, states:
“‘Unjustifiably harsh consequences’ are ones which involve a harsh outcome(s) for the applicant or their family which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others
This involves consideration of whether refusal would be proportionate, taking into account all the facts of the case and, as a primary consideration, the best interests of any relevant child. The case-law makes clear that where the applicant does not meet the requirements of the rules, and has established their family life in ‘precarious’ circumstances (for example, when they have limited leave to enter or remain in the UK), something ‘very compelling’ is required to outweigh the public interest in refusal. Likewise, where family life is formed or exists with a person outside the UK who has no right to enter the UK and does not meet the requirements of the rules for entry clearance, Article 8 does not require that they be granted entry, in the absence of such exceptional circumstances.
A ‘relevant child’ means a person who:
• is under the age of 18 years at the date of application
• it is evident from the information provided by the applicant would be affected by a decision to refuse the application”.
The Supreme Court judgment in Agyarko and Ikuga, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 11, upheld the Secretary of State’s approach in applying a test of ‘unjustifiably harsh consequences’ for the applicant or their family in deciding (in a case falling for refusal under the Immigration Rules) whether exceptional circumstances existed such that refusal of leave would constitute a breach of Article 8.
The 5 Razgar questions- consideration of Article 8 claims:
In Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661, the Court of Appeal stated:
“43.In R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368, at para. 17, Lord Bingham of Cornhill set out the questions that arise for determination when removal is resisted in reliance on Article 8 grounds:
“(1) will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”
In relation to the “balance sheet” approach in the structure of judgements where Article 8 is engaged, Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60, Lord Thomas stated:
“82. I agree with the judgment of Lord Reed and in particular the matters he sets out at paras 37-38, 46 and 50. I add three paragraphs of my own simply to emphasise the importance of the structure of judgments of the First-tier Tribunal in decisions where article 8 is engaged. Judges should, after making their factual determinations, set out in clear and succinct terms their reasoning for the conclusion arrived at through balancing the necessary considerations in the light of the matters set out by Lord Reed at paras 37-38, 46 and 50. It should generally not be necessary to refer to any further authority in cases involving the deportation of foreign offenders.
Exceptional circumstances: grant of leave to remain
Where the application has been considered solely on the basis of private life in the UK under paragraph 276ADE(1)-DH, and the applicant does not otherwise meet those rules, but it is considered that 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), leave to remain should be granted on Article 8 grounds outside the Immigration Rules.
The applicant will normally be granted leave to remain outside the Immigration Rules for a period of 30 months, with scope to qualify for settlement after 10 years’ continuous lawful residence in the UK.
(17).COMPELLING COMPASSIONATE FACTORS IN THE ALTERNATIVE
The Guidance, Family life (as a partner or parent), private life and exceptional circumstances, provides in short:
“Where circumstances do not warrant a grant of leave on the basis of Article 8, you must consider if a grant of leave is warranted on compelling compassionate grounds.
Compelling compassionate factors are, broadly speaking, exceptional circumstances that warrant a period of leave for a non-Article 8 reason. An example might be where an applicant or family member has suffered a bereavement and requests a period of stay to deal with their loss or to make funeral arrangements.
In considering compassionate factors, you must consider all relevant factors raised by the applicant
If any compassionate factors are raised in the application, you should consult the following leave outside the rules guidance:
• Leave outside the rules (LOTR) (internal)
• Leave outside the rules (LOTR) (external)
You should ensure that where an applicant is granted limited leave to remain on the basis of compassionate factors, the decision letter must clearly show that the grant has been given outside the Immigration Rules on the basis of compassionate factors, and must be clear that the grant is not being made on the basis of their Article 8 family or private life.
It is unlikely that leave will be granted for a period of 30 months, but instead should be a short period of leave to remain granted to reflect the individual circumstances of the application. For example, it may be appropriate to grant a period of 6 months’ leave to enable completion of final examinations taking place within 4 months, to allow for the examinations and to arrange travel”.
(18). HOW TO APPROACH AN ARTICLE 8 PRIVATE LIFE CLAIM
- Obtain a full factual and immigration history of the individual claim
- Prepare an effective supportive statement for the applicant and where relevant address the issues set out above at paragraph 19 of Parveen v The Secretary of State for the Home Department [2018] EWCA Civ 932
- Gather supportive documentary evidence showing the applicant has lived continuously in the UK for the number of years that they say they have
- By way of effective representations, where relevant, show the 7years residence has been met and in particular, explain by reference to the facts, caselaw, Home Office Guidance and background evidence, how the “reasonableness” test has been satisfied
- Via effective representations, show that although the claimant 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
- Show a combination of factors applicable to the claim as set out in the material to be submitted before the Secretary of State which mean that the requirements of the Immigration Rules have been met
- By reliance upon the background evidence, show the country conditions applicable to the relevant country of origin e.g, the unemployment problems, harsh country conditions, stigma or discrimination issues, etc and impact on reintegration.
- As regards employment, efforts need to be shown that the claimant has sought to source employment from the relevant country whilst in the UK, for example sending out emailed job applications, attaching a CV further showing the source of the corresponding job advert. Ultimately, indicate any responses or lack thereof received in relation to the job applications. Explain any inability to transfer skills acquired in the UK in the relevant country of return
- Obtain a relevant country expert report where applicable, a medical report or Independent Social Worker’s Report
- Where relevant, show the lack of any ties or support network in the country of origin. Where there is family in the country of return, show why it is not possible to rely upon them for practical support following arrival. The claimant’s statement should provide clarifications.
- If there are any family members or friends in the UK, explain why reliance cannot be placed upon money remittances from them to enable integration.
- Additionally, explain why any financial support to be provided via the UK Voluntary Return Assistance scheme will likely be depleted in a relatively short time upon arrival
- Seek to research the cost of rental accommodation in relation to the town or city of arrival or the place of origin in the country of return and explain why the applicant will be unable to afford the rent and therefore is likely to be destitute on return.
- In seeking to reply upon exceptional circumstances, also place reliance upon any significant delays in the consideration of past or present claims and refer to relevant caselaw having regard to the effect of delay upon the proportionality balancing exercise in the consideration of an Article 8 claim.
- Where relevant, in seeking to establish exceptional circumstances, show any applicable particularly strong features of the applicant’s private life in the UK such as sustained volunteer work, value of the claimant in the community, seeking to rely also on paragraph 53 of Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803:“ … Although a court or tribunal should have regard to the consideration that little weight should be given to private life established in [the specified] circumstances, it is possible without violence to the language to say that such generalised normative guidance may be overridden in an exceptional case by particularly strong features of the private life in question …”