The Definition of “Precarious” - Precarious No More? The Case of Rhuppiah v SSHD
On 14 November 2018, the Supreme Court delivered their judgment in Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58.
In making this judgment, the Justices have clarified when an individual’s immigration status should be considered ‘precarious’. As we will see, whether their status is considered precarious or not will determine the extent to which their private life in the UK is protected by Article 8 of the European Convention on Human Rights (“The Convention”).
Section 117B and the Initial Position
As set out in a previous blog post, Section 19 of the Immigration Act 2014 (“The 2014 Act”) inserted Section 117B into the Nationality, Immigration and Asylum Act 2002 (“The 2002 Act”). Section 117B sets out matters which the courts must accept are in the public interest when making immigration decisions. Of these matters, section 117B(5) raises the issue of precarious immigration status. It states;
“(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”.
No definition of ‘precarious’ can be found in the 2002 Act. However, shortly after Section 117B(5) came into effect, the Upper Tribunal addressed the ambiguity. In AM (S117B) Malawi [2015] UKUT 0260, the Tribunal held that a person’s immigration status is precarious;
“if their continued presence in the UK will be dependent upon their obtaining a further grant of leave”.
This absolutist assessment of what constitutes ‘precarious’ persisted until the case of Rhuppiah came before the courts.
Rhuppiah – The Background
The Appellant arrived in the UK in 1997 as a student. She obtained further Leave to Remain as a student on 12 occasions, despite the fact some of her applications had been made after he previous leave had expired. On 11 October 2010, the Appellant’s Leave to Remain expired, and she became an overstayer. She then made an application for Leave to Remain outside of the Rules, relying on Article 8 of The Convention. In so doing, she relied on her relationships with a chronically ill friend whom she helped care for, her niece, and her charitable endeavours. Her application was refused in June 2013, and the Appellant appealed. With her appeal dismissed at both the First-Tier and Upper Tribunal, the Appellant was granted permission to appeal to the Court of Appeal. The matter was heard on 21 July 2016.
Although the Court of Appeal concluded that the Appellant’s immigration status had indeed been precarious between 1997 and 2010, they chose to address the definition of ‘precarious’ in obiter. In delivering the lead judgment, Lord Justice Sales commented (at paragraph 44);
“There is a very wide range of such cases in which some form of leave to remain short of ILR may have been granted, and the word ‘precarious’ seems to me to convey a more evaluative concept … which is to be applied having regard to the overall circumstances in which an immigrant finds himself… Some immigrants with leave to remain falling short of ILR could be regarded as being very settled indeed and as having an immigration status which is not properly to be described as ‘precarious’”.
Rhuppiah at the Supreme Court
The Appellant appealed to the Supreme Court, and the matter was heard on 10 July 2018. In reaching their decision, the Supreme Court took its cue from the jurisprudence of the European Court of Human Rights on the right to family life, a right covered by Article 8 of The Convention (but not tempered by Section 117B(5)).
The European court had concluded on a number of occasions that there was a clear distinction between individuals who have been granted a fixed period of leave and those who had settled in the country in question. For family life purposes, the former were considered to have a precarious immigration status by the European court.
The Supreme Court had endorsed the European court’s approach in relation to family life matters in the case of R (on the application of Agyarko) v Secretary of State for the Home Department [2017] UKSC 11. They held that this absolutist (or ‘bright-line’) approach also applied in the context of private life cases, and therefore to the term precarious as it operated in Section 117B(5). As a result, the Supreme Court concluded (at paragraph 44);
“everyone who, not being a UK citizen, is present in the UK and who has leave to reside here other than to do so indefinitely, has a precarious immigration status for the purposes of section 117B(5)”.
Impact of the Decision
It should be remembered that the Court of Appeal’s more flexible approach to precariousness was endorsed in obiter. However, following their judgment, it was believed that a degree of wriggle-room existed for those with limited Leave to Remain in the UK who wished to rely on their right to a private life under Article 8 of The Convention in obtaining further Leave. In handing down their judgment however, the Supreme Court has sought to reinstate the initial absolutist position, as expressed by the Upper Tribunal in AM (Malawi) in 2015.
Some flexibility is retained by virtue of S.117A(2)(a) of the 2014 Act, which, in the words of Lord Wilson (at paragraph 49) “necessarily enables their applications occasionally to succeed”, including in exceptional cases. The judgment also confirmed the broader definition of “financially independent” found in S.117B(3) of the 2014 Act as meaning financial independence from the state, rather than from any third parties.
However, in confirming that an individual has a “precarious” immigration status if they have anything less than Indefinite Leave to Remain, the Supreme Court have with their judgment made relying on one’s right to a private life in the UK in order to secure Leave that little more difficult.
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