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Relevance of ‘little weight’ provisions in section 117B to precarious family life cases

In the judgment of Rajendran (s117B – family life) [2016] UKUT 00138 (IAC) the Upper Tribunal (comprising Upper Tribunal Judges Storey and Perkins) reviewed the provisions of section 117B of the Nationality, Immigration and Asylum Act 2002 (as amended) (the ‘2002 Act’) relating to the ‘little weight’ provisions within section 117B(4) and (5) in the context of precarious family life cases.
This case concerned a Canadian citizen who is a widow and blind. She had travelled to the UK as a visitor between 4 August 2013 and 30 January 2014. On 19 February 2014 she returned to the UK where she was granted leave to enter as a visitor for three months. 
Shortly after arriving in the UK, the appellant applied for leave to remain in the UK on the basis of her private life under Article 8 of the European Convention on Human Rights. Reliance was placed on the appellant’s relationship with her younger daughter in the UK who had limited leave to remain. The appellant’s younger daughter was married to a British citizen and they had a child together. 
The appellant had family in the UK.  She also had a daughter in Canada although the Appellant raised concerns that she would be adequately cared for upon her return. 
The appellant’s application was refused by the Secretary of State for the Home Department (the ‘SSHD’) on 14 July 2014 on the basis that it was not accepted that the appellant had lost all ties with Canada and so did not qualify for leave to remain under paragraph 276ADE of the Immigration Rules. 
The SSHD also considered whether there were any exceptional circumstances so as to justify a grant of leave outside the Immigration Rules on Article 8 grounds. The SSHD was aware that the appellant suffered from various medical conditions, including blindness, anxiety, depression, hypertension and type 2 diabetes but found that treatment for these conditions would be available to her in Canada. 
On appeal it was contended that the appellant had no close relatives in Canada to provide the required level of support and care and that, in contrast, she had strong family life ties in the UK with her younger daughter and her family in the UK. 
The First-tier Tribunal dismissed the appellant’s appeal. Whilst it was accepted that the appellant had a family life in the UK and that the refusal of leave to remain interfered with her family life, the First-tier Tribunal Judge (the ‘FTTJ’) concluded that the interference occasioned would be proportionate. 
The FTTJ gave several reasons for dismissing the appeal, but the salient reasons were that the appellant did not satisfy the requirements of the Immigration Rules for leave to remain on the ground of family life (namely the adult dependent relative provisions within section D-ILRDR of Appendix FM) and there is a public interest in persons in the appellant’s position (i.e. that are not eligible for leave to remain in the UK where there is adequate care available in their country of nationality) leaving the UK. 
In addition, the FTTJ noted that the level of family life that the appellant had established in the UK had to be considered in the context of section 117B of the 2002 Act and that owing to the appellant’s precarious immigration status in the UK as a visitor, the FTTJ attached less weight to the appellant’s family life in the UK. 
The appellant sought, and was granted, permission to appeal to the Upper Tribunal. Two grounds were advanced; the first concerned the FTTJ’s assessment of the appellant’s family life ties in the UK and Canada, and secondly the FTTJ erred in his approach to section 117B of the 2002 Act. 
The first ground of appeal was rejected by the Upper Tribunal on the basis that the FTTJ’s findings were properly open to him. 
In relation to the second ground of appeal, the Upper Tribunal concluded that whilst the FTTJ ‘failed to show a precise appreciation of s117B’ to the facts of the present case, the FTTJ’s conclusion that removal would not amount to a disproportionate interference with her family life did not contain a material error of law. 
Section 117A(2) of the 2002 Act states that when considering the question whether an interference with a person’s right to respect for private and family life is justified under Article 8(2), the court or tribunal must, in particular, have regard to the considerations listed in section 117B (and in cases concerning deportation, the considerations listed in section 117C).
The relevant provisions of Section 117B state as follows: 
‘(4)Little weight should be given to— 
(a)a private life, or 
(b)a relationship formed with a qualifying partner, 
that is established by a person at a time when the person is in the United Kingdom unlawfully. 
(5)Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious’.
The appellant sought to argue that because the FTTJ accepted that she had established a family life (as distinct from a private life) with her younger daughter, her son-in-law and her grandson (and therefore not with a qualifying partner) the FTTJ erred in applying the ‘little weight’ provisions in section 117B(4) and 5) to the facts of her case. 
The Upper Tribunal, having considered previous case law on the scope and rationale of Section 117A-D, confirmed that the provisions contained in section 117B are not exhaustive and are only a starting point [34]. 
At paragraph 37 the Upper Tribunal held that there is no specific reference in section 117B(4) and (5) for family life relationships other than that with a qualifying partner. However, the Upper Tribunal continued to note that family relationships outside section 117B are not to be ignored entirely.  
The Upper Tribunal referred to the judgment in R (on the application of) Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin) in which Mr Justice Sales (as he was at the time) stated at paragraph 42:
‘The approach explained in the Strasbourg case-law indicates that where family life is established when the immigration status of the claimant is precarious, removal will be disproportionate only in exceptional cases…’
Reference was also made to the ECtHR judgment in Jeunesse v Netherlands [2014] ECHR 1036 in which the court, drawing on its previous case law, confirmed at paragraph 108:
‘Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. It is the Court’s well-established case-law that, where this is the case, it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8…’
In view of the established Article 8 jurisprudence relating to the creation of a family life when a person’s immigration position is precarious, its omission from section 117B of the 2002 Act does not mean that this is a factor which is to be disregarded. 
Whilst section 117B may well be silent as to family life relationships beyond those with ‘qualifying partners’, the case law cited above is still relevant to the proportionality exercise when deciding whether the proposed interference with family life is justified under Article 8(2). 

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