The Precarious Definition of Precarious - Rhuppiah v. SSHD
On 28 July 2014, section 19 of the Immigration Act 2014 inserted section 117B into the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), the aim of which was to expressly indicate to the Tribunals factors that Parliament considered are in the public interest.
One criterion which has caused some controversy is section 117B(5) of the 2002 Act which reads:
“(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 2002 Act does not define when a person’s immigration status is ‘precarious’.
The first reported case which specifically dealt with the definition of precarious was AM (S 117B) Malawi [2015] UKUT 0260, a panel Tribunal comprised of the Vice President Upper Tribunal Judge Ockleton and Deputy Upper Tribunal Judge Holmes. In AM (Malawi), it was held that there was a sharp distinction between a period of time in the UK unlawfully and a period of time in the UK when one’s immigration status was precarious. It went on to hold 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.” In effect, any time spent in the UK without indefinite leave to remain (in some cases even with ILR or as a British citizen) would carry little weight under the Article 8 ECHR balancing exercise.
This broad-brush approach did away with a nuanced or contextual consideration of whether someone’s immigration status was precarious; it only depended on whether one required further leave to remain. Furthermore, arguably, any family life established when one party’s immigration status is precarious must equate to precarious family life. Given that almost all applicants/appellants in the immigration law domain would require a further grant of leave (hence needing to make an application or appeal), it would follow that virtually all family life in the immigration law domain is precarious family life. This is significant because precarious family life cases are treated unfavourably and may need to meet a stricter test (see for example para. 39 in R (on the application of Chen) v Secretary of State for the Home Department) (Appendix FM – Chikwamba – temporary separation – proportionality) IJR [2015] UKUT 00189, and para. 30 and 31 in Agyarko & Ors, R (on the application of) v The Secretary of State for the Home Department [2015] EWCA Civ 440).
Against this, in Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803, the Court of Appeal was confronted with the question of whether the Appellant’s immigration status was precarious within the meaning of section 117B(5) of the 2002 Act.
The relevant facts of the case are as follows. The Appellant entered the UK as a student in 1997. She extended her leave successively and, as the Immigration Rules in force at time required, in each application she stated her intention to leave the UK at the end of her studies. The Appellant’s leave to remain expired on 11 October 2010 and she became an overstayer. She thereafter made an application for leave to remain outside of the Rules by relying on Article 8 ECHR, which was refused in June 2013. She appealed to the First-tier Tribunal (“FtT”) on the basis that she should be given leave to remain on account of her established private life in the UK, in view of her relationships with a friend, niece, and her charitable work. The FtT dismissed the appeal in August 2014 and the Upper Tribunal in December 2014 found that there was no error of law in the FtT’s determination and dismissed the Appellant’s appeal. Permission to appeal was granted and heard on 21 July 2016 before the Court of Appeal, comprised of Lord Justice Moore-Bick, Lord Justice Sales, and Lord Justice Sir Stephen Richards.
The Court of Appeal considered a variety of issues pertaining to section 117 of the 2002 Act, one of which was whether the Appellant’s immigration status between 1997 and 2010 was precarious within the meaning of section 117B(5) of the 2002 Act.
At paragraph 33, the Court of Appeal observed that Counsel on both sides made “opposing extreme submissions on the meaning of precariousness”. Counsel for the Appellant submitted that a person who is granted some form of limited leave to remain but who might eventually qualify for ILR under the Immigration Rules could not be regarded as having a precarious immigration status. Counsel for the Respondent submitted, in line with AM (Malawi), that if there was any temporal limit on the leave granted to enter or remain, that would qualify as a precarious immigration status.
In essence, the Court of Appeal rejected the Appellant’s submissions because each period of grant was specifically limited to the comparatively short and clearly delimited period required for the completion of a course of study on each occasion. The Appellant had a stated intention to leave the UK at the end of the comparatively short period of leave, and only had a speculative hope that she might be permitted to stay for longer at that point. It was not unreasonable to expect the Appellant to organise her private life accordingly. It further held that there was public interest in being able to remove students at the end of their studies without undue difficulty for sake of prospective students, otherwise there would be a real prospect that leave to enter as a student would be granted less readily and in fewer cases.
Given that the Court of Appeal found that Appellant’s status in the UK between 1997 and 2010 was precarious, the Court found it unnecessary to address the Respondent’s position as to the definition of ‘precariousness’. However, the Court nevertheless expressed doubts as to the correctness of the Respondent’s position. It observed:
“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’”.
Curiously, there is no reference to AM (Malawi) in the judgement even though it was cited in the Court of Appeal.
Whilst the observations of the Court of Appeal at paragraph 44 is strictly obiter, it does appear to go against AM (Malawi) in that the need for further grant of leave to remain, in and of itself, is not dispositive of whether one’s immigration status is precarious. There is now perhaps more room for the argument that one’s status was not precarious, if it can be shown that there was a rightful expectation that residence was more permanent, notwithstanding the temporal leave. As matters stand, the definition of precarious appears to be more contextual, opaque, and well… precarious.
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