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Petitioner: Rhuppiah VS Respondent: Secretary of State for the Home Department
Court Name: Supreme Court of United Kingdom Judge(s): Lady Black, Lord Lloyd Jones, Lord Wilson, Lord Hughes, Lord Carnwath Title: Rhuppiah vs Secretary of State for the Home Department Case No.: 2018) UKSC 58 Date of Judgment:2018-11-14 Reported As: 2019 P.S.C. 1515 Result: Appeal allowed
JUDGMENT
JUDGMENT LORD WILSON (with whom LORD CARNW ATH, LORD HUGHES, LADY BLACK and LORD LLOYD-JONES agree) The Primary Question 1. The Home Secretary determines to exercise his power to remove a foreign national from the UK. The foreign national contends that the determination is unlawful on the ground that her removal would violate her right to respect for her private life under article 8 of the European Convention on Human Rights and section 6(1) of the Human Rights Act 1998 ("the 1998 Act"). Section 117B(5) of the Nationality , Immigration and Asylum Act 2002 ("the 2002 Act") provides that little weight should be given to a private life which she established at a time when her immigration status was -precarious". What does the word "precarious" mean in this context? This is the primary question posed by the present appeal. Introduction 2. The foreign national is Ms Rhuppiah. On 22 August2014, in the First-tier Tribunal, First-tier Tribunal Judge Blundell (to whom I will refer as Judge Blundell) reluctantly dismissed her challenge under article 8 to the Home Secretary's determination, dated 6 June 2013, to remove her from the UK. Judge Blundell concluded that her private life in the UK had been establishe d at a time when her immigration status had been precarious within the meaning of section 117B(5), which had come into force less than a month earlie r; and he considered himself in effect bound by the subsection to dismiss her appeal against the determination. Her further appeals to the Upper Tribunal and then to the Court of Appeal both failed. By its decision dated 2 August 2016, [2016] EWCA Civ 803, [2016] 1 WLR 4203, the Court of Appeal (Sales LJ, who gave the substantive judgment, and Moore-Bick LJ and Sir Stephen Richards, who agreed with it) upheld Judge Blundell's conclusion that the establishment of Ms Rhuppiah's private life in the UK had occurred at a time when her immigration status had been precarious. Now she appeals
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against the decision of the Court of Appeal. Within the well-known structure of article 8, the primary question arises as part of the inquiry into whether the proposed interference with Ms Rhuppiah's private life in the UK is proportionate. Therefore, in determining this appeal, this court, like the Upper Tribunal and the Court of Appeal,, must ask itself whether Judge Blundell was wrongto hold that at the relevant time her immigration status had been precarious: seethe judgment of Lord Carnwath in R(R) v Chief Constable of Greater Manchester Police [2018] UKSC 47, [2018] 1 WLR 4079, paras 53 to 64. 3. As it happens, Ms. Rhuppiah's appeal has recently become academic. This occurred on 9 February 2018; and explanation of it requires reference to the Immigration RulesHC395 ("the rules"). 4. The Home Secretary has set out in the rules, indorsed by Parliament, the provisions which, in his opinion reflective of his policy , should in principle govern his determination of claims to resist removal from the UK on the part of those in breach of immigration laws by reference to their right to respect for their private or family life under article 8. He recognises, however , that his obligation under section 6 of the 1998 Act, like that of a court hearing an appeal against his determination when based on article 8, is to act compatibly with rights under article 8 and that such compatibility may not always coincide with compatibility with his rules. So, like the courts, the Home Secretary has to allow for the possibility that a person may be entitled to resist removal under article 8 even when he or she cannot doso under the rules. But article 8 itself, as interpreted by the European Court of Human Rights ("the ECtHR"), confers upon the relevant policy-maker , who in the UK is the Home Secretary , a limited discretion in relation to the determination of claims made under it. So, when a person claims toresist removal by reference to article 8 outside the rules, the Home Secretary is entitled, and a court hearing an appeal against his determination is required, to weigh in the balance against the claim the fact that it could not have succeeded under the rules: see the judgment of Lord Reed in R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11, [2017] 1 WLR 823, at paras 46 and 47. 5. In these proceedings Ms Rhuppiah has been resisting removal by reference to article 8 outside the rules. What happened on 9 February 2018 was that the Home Secretary decided that she had recently become able to resist removal by reference to article 8 under the rules. As I will explain, Ms Rhuppiah entered the UK on 16 September 1997 and has lived here continuously ever since. Paragraph 276ADE(1) of the rules specifies the requirements to be met by an applicant for leave to remain in the UK on the ground of private life in the UK; and they include, at (iii), that he or she has lived continuously in the UK for at least 20 years. It follows that on 16 September 2017 Ms Rhuppiah began to satisfy the requirement at (iii); she also satisfied the other requirements. Paragraph 276BE(1) provides that; if the requirements of para 276ADE(1) are satisfied, the Home Secretary may grant leave to remain in the UK for up to 30 months; and para 276DE provides that, if an applicant has remained in the UK with continuous leave on the ground of private life for at least ten years, he or she may be granted indefinite leave to remain. 6. Thus it was that by letter dated 9 February 2018, the heading of which referred to Private Life Rules, the Home Secretary (to whom, for convenience, I will throughout refer as male) informed Ms Rhuppiah that he had grantedher leave to remain in the UK 'for 30 months; that she could apply . for further limited leave prior to the end of that period; and that, in the event that she were to complete at least ten years of continuous residence pursuant to leave to remain on the ground of her private life, she might then be eligible for a grant of indefinite leave to remain in the UK. 7. The result is that the Home Secretary then granted to Ms Rhuppiah all that she could have hoped to achieve in the present proceedings. Thought then turned to the utility of any further prosecution of the present appeal. In the event the court agreed with the parties that the appeal should proceed. The court agreed that it was of general importance for it to offer a definitive interp retation of the word "precarious" in section 117B(5) of the 2002 Act. It is also now clear , as both parties agree, that in any event the First-tier Tribunal (and indeed the Court of Appeal) fell into error in a different respect and that, irrespective of -Whether it was material, the error requires to be rectified: see paras 51 to 57 below . 8. So the appeal has proceeded. Were this court to conclude that the First-tier Tribunal had been wrong in a material respect to dismiss Ms Rhuppiah's appeal against the Home Secretary's determination dated 6 June 2013,
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it would allow her appeal in the normal way and set aside the tribunal's order . That would render Ms Rhuppiah's appeal against it undecided. But there is now no need for it to be decided. So the court would not remit it to the tribunal for fresh determination. The Facts 9. The relevant facts can be taken from a determination of conspicuous clarity and sensitivity made by Judge Blundell following a substantial oral hearing. 10. Ms Rhuppiah is a Tanzanian national, now aged 45. She lived in Tanzania until 1997, when she entered the UK with leave to reside here as a student for three months. Her mother and one of her brothers still reside in Tanzania. Her father works for the UN in Sudan and regularly sends money to the UK for her support. Her other brother lives in Basingstoke; and he has a daughter , aged nine, with whom she is on close terms. There would, however , be no significant obstacle to the re-integration of Ms Rhuppiah into society in Tanzania. 11. The Home Secretary granted further leave to Ms Rhuppiah to reside in the UK as a student on no less than 12 occasions. The final grant expired on 30 November 2009. But six of these further grants were made pursuant to applications made after the previous leave had expired. Responsibility for the delay usually lay with the college to which Ms Rhuppiah had entrusted the task of making the applications on her behalf. 12. In making her applications for further leave to reside in the UK as a student, Ms Rhuppiah was required to demonstrate an intention to leave the UK at the end of her studies. On each occasion she did so to the satisfaction of the Home Secretary . In cross-examination before the tribunal she accepted that she always expected to be required to leave the UK at some point. 13. As a result of her extensive studies in the UK, Ms Rhuppiah, who speaks English fluently , gained a variety of qualifications in business studies and associated fields. 14. In November 2009, at the time of the expiry of the final grantof leave, Ms Rhuppiah applied for indefinite leave to remain in the UK on the ground of continuous lawful residence in the UK for at least ten years pursuant to what was then para 276B(i)(a) of the rules. The trouble was that her continuous residence had not always been lawful. The Home Secretary refused her applica tion and the First-tier Tribunal dismissed her appeal against the refusal. When, on 11 October 2010, the Upper Tribunal refused to grant her leave to appeal against the dismissal, Ms Rhuppiah became an unlawful over stayer in the UK. Judge Blundell observe d that, had it not been for the ineptitude of her college in failing to make timely applications for further leave on her behalf, her application for indefinite leave to remain would probably have succeeded. 15. Ms Rhuppiah's next attempt to apply for indefinite leave to remain in the UK met further ill-fortune. On 1 July 2012 she applied on the ground of conti nuous residence in the UK (whether or not lawful) for at least 14 years pursuant to what was then para 276B(i)(b) of the rules. But she applied on the wrong form and enclosed an insuf ficient fee. So on 12 July her application was returned to her. On 24 July she re-applied. But by then, namely on 9 July, the rules had been amended so as to delete para 276B(i)(b) (Statement of Changes in Immigration Rules HC 194). Judge Blundell observed that Ms Rhuppiah was justified in feeling cheated but he correctly held that a 'near miss" was irrelevant. He cited Patel v Secretary of State for the Home Depart ment[2013] UKSC 72, [2014] AC 651, in which, at para 53, Lord Carnwath cited with approval an observation that a miss was as good as a mile. 16. When belatedly , the Home Secretary addressed Ms Rhuppiah's re-application dated 24 July 2012, he inevitably determined that it could not succeed under the rules. He proceeded to consider whether it should succeed on a basis outside the rules, by reference to her right to respect for her private life under article 8. His determination on that basis was also negative; and such has been the basis on which in these proceedings she has challenged the lawfulness of his determination to remove her from the UK. 17. There is a striking feature of the private life established by Ms Rhuppiah in the UK. It concerns her friendship with Ms Charles. She lives in the home of Ms Charles, which is, or was at the time of their oral evidence to Judge Blundell, in London. Ms Charles is highly qualified in the field of IT and works as a systems engineer for Ministry of Defence projects and often in Bristol. Ms Rhuppiah met Ms Charles when they were studying at the same college and they have resided together since 2001. But it is not suggested -and there is no need to consider whether it might have been suggested -that Ms Rhuppiah pursues "familylife" with Ms Charles within the meaning of article 8.
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18. Ms Charles suffers from ulcerative colitis, a gravely debilitating condition. She suffers frequent symptoms of diarrhoea, nausea, inability to eat, anaemia, fatigue, joint pain and reduced mobility . She has had multiple admissions to hospital. She is heavily dependent on Ms Rhuppiah both physically and emotionally . Ms Rhuppiah cooks such food as Ms Charles can eat and accompanies her to Bristol, to hospit al and in effect everywhere. Ms Charles has ceded control of her financial affairs to her. Instead of paying her for looking after her in these respects, Ms Charles provides her with largely free board and lodging. 19. Judge Blundell found that Ms Rhuppiah, who is a Seventh Day Adventist, cares for Ms Charles out of friendship, faith and habit. He found that, were Ms Rhuppiah to leave the UK, Ms Charles would have to turn to the state to meet her need for care; that her physical health and her ability to continue to work in Bristol would be compromised, at least in the short term; and that her life would be turned upside down. Sections 1 17A and 1 17B 20. Section 1178(5) falls within Part 5A of the 2002 Act, which was inserted into it, with effect from 28 July 2014, by section 19 of the Immigration Act 2014. Part 5A is headed "Article 8 of the ECHR: Public Interest Considerations". Unfortunately it is necessary to set out a substantial amount of Part 5A, as follows: "117A Application of this Part. (1) This Part applies where a court or tribunal is required to determine wheth er a decision made under the Immigration Acts - (a) breaches a person's right to respect for private and family life under article 8, and (b) as a result would be unlawful under section 6 of the Human Rights Act 1998. (2) In considering the public interest question, the court or tribunal must (in particular) have regard (a) in all cases, to the considerations listed in section 1 17B (3) In subsection (2), the public interest question' means the question of whether an interference with a person's right to respect for private and family life is justified under article 8(2). 117B Article 8: public interest considerations applicable in all cases (1) The maintenance of ef fective immigration controls is in the public interest. (2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English - (a) are less of a burden on taxpayers, and (b) are better able to integrate into society . (3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons - (a) are not a burden on taxpayers, and (b) are better able to integrate into society . (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. (6)21. It will be seen that the considerations in each of the first five subsections of section 117B are all entitled "public interest considerations". On any view the considerations in the first three subsections relate to the public interest in the removal of a person present in the UK contrary to immigration law. At first sight, however , one might consider that the considerations in the fourth and fifth subsections relate to the strength of the case which might weigh against that public interest. The explanation for their inclusion as public interest considerations lies in the wide definition of "the public interest question" set out in section 117A(3) above. See Deelah (section 117B - ambit) [2015] UKUT 00515 (IAC), paras 18 and 21.
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22. Section 117B(4) is not engaged in the present case: it is agreed that Ms Rhuppiah established her relevant private life in the UK, in particular her role in caring for Ms Charles, long before 2010 and at a time when her presence here was predominantly lawful. Nevertheless it may be helpful to note the reference to a "qualifying partner" in section 117B(4)(b) and to glance at the definition of that phrase in section 11 7D(1). It meals a partner who is a British citizen or "who is settled in the United Kingdom (within the meani ng of the Immigration Act 1971- see section 33(2A) of that Act)". Section 33(2A) defines a person as settled in the UK if he is "ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain". Insofar as the court's inquiry into the meaning of a precarious status in section 117B(5) may be seen in what follows to require contrast with the meaning of a settled status, it may be helpful to bear in mind the definition of the word "settled" brought by section 1 17D(1) into the 2002 Act itself. 23. At last this judgment can proceed to address the primary question, namely the meaning of the word "precarious" in section 1 17B(5). Section 1 17B(5) 24. Ms Rhuppiah accepts that a person's immigration status in the UK can be preca rious when he or she is lawfully present in the UK; otherwise subsection (5) of section 117B would add nothing to subsection (4). She suggests that, for example, asylum-seekers pending determination of their applications and lawful visitors to the UK probably have a precarious immigration status. But she contrasts their situation with that of persons who, albeit with a right to remain which is time-limited, have a reasonable hope of permanent settlement in the UK or who (as is suggested by Richard Warren, "Private life in the balance: constructing the precarious migrant", Journal of Immigration, Asylum and Nationality Law (2016)124,130) are on a potential path to settlement. She contends that, with the grant to her of long periods of leave to reside as a student, she fell into the latter category . Hope that circumstances might change to enable her to continue to live in the UK did not, says Ms Rhuppiah, invalidate her intention, when seeking extensions of her visa, to depart from the UK at the end of her studies. That a potential path to settlement was open to her is, she contends, made clear by the fact that she came close to securing it both in 2010 and in 2012. 25. The Court of Appeal rejected Ms Rhuppiah's argument, along the lines of the above, that her immigration status prior to 2010 was not precarious. But, when it turned to the Home Secretary's contrary argument, which was and is that all leave short of indefinite leave to remain in the UK gives rise to a precarious status, the court expressed provisional doubt. Sales LJ said at para 44: "There is a very wide range of 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, the opposite of the idea that a person could be regarded as a settled migrant for article 8 purposes, which is to be applied having regard to the overall circumstances in which an immigrant finds himself in the host country . 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'." 26. Such being the parameters of the issue surrounding the primary question, we must seek guidance in authority , first that of the ECtHR. 27. It was in its admissibility decision in Mitchell v United Kingdom, (Application No 40447/98)24 November 1998, that the ECtHR appears first to have used the word "precarious" in the context of an application under article 8. It rejected, as manifestlyill-founded, a British citizen's application that her husband's deportation to Jamaica had violated her right to respect for her family life. Her husband had been admitted to the UK as a visitor for six months: and for the following five years, in the course of which the applicant had married him, he had remained in the UK unlawfully . The court said at p 4: "An important though not decisive consid eration will also be whether the marriage was contracted at a time when the parties were aware that the immigration status of one of them was such that the persistence of the marriage within the host state would from the outset be precarious. The court considers that where this is a relevant consideration it is likely only to be in the most exceptional circumstances that the removal of the non-national spouse will constitute a violation of article 8 ..."
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28. In its numerous subsequent reiterations of the consideration identified in the Mitchellcase the ECtHR has adapted it so as to extend to cases in which the context of the alleged family life was not a marriage. So the question became whether family . Life was created at a time when the parties were aware that the immigration status of one of them was such that the persistence of family life within the host, state Would from the outset be precarious: see, for example, Rodrigues da Silva Hoogkamer v Netherlands(2007) 44 EHRR 34, para 39. In that case a mother and her young daughter relied on their family life together . At all times the mother's stay in the Netherlands had been unlawful and she had given birth to the daughter there. It is implicit in the court's judgment that the persistence of their family life in the Netherlands was therefore known to be precarious and that it was only by virtue of exceptional circumstances that" the court held article 8 to have been violated. 29. In what circumstances beyond those in which a participant in the family life was known to be present in the 'state unlawfully , would its persistence there be precarious? 30. In its admissibility decision in Useinov v Netherlands (Application No 61292/00)1 1 April 2006, the ECtHR said, at p 9: 31.".. it is the applicant's submission that he was allowed to live in the Netherlands pending the proceedings on his asylum application and his subsequent application for a residence permit for compelling reasons of a humanitarian nature, ie a total period of just over five years. However , the court is of the view that this cannot be equated with lawful stay where the authorities explicitly grant an alien permission to settle in their country . Therefore, the applicant's stay in the Netherlands was precarious for most of it and illegal for the remainder ." The court proceeded to hold, in apparent reference to the discussion in the Mitchellcase, that there were no exceptional circumstances giving rise to a violation. 31. The final sentence of the above passage in the Use incase presents a slight complication in that it pitches the word "precarious" into a slightly different context from that in which it had been placed in the Mitchell case, from which the court had just quoted. For in the final sentence the court analysed whether the applicant's stay had been precarious, not whether the persistence of family life there had been known to be precarious. In that slightly different context it distinguished between a precarious stay, permitted by the state but only pending its determination of outstanding applications, and an illegal stay. Had the court instead asked whether the persistence of family life had been known to be precarious, it would surely have answered affirmatively in relation both to the precarious and to the illegal periods of the applicant's stay . 32. The more useful part of the above passage is in the distinction drawn betw een permission to stay pending determination of applications, which makes persistence of family life during that period precarious, and permission to "settle", which (by implication) does not do so. The distinction was reaffirmed in Nnyanzi v United Kingdom (2008) 47 EHRR 18, para 76. 33. The case of Butt v Norway (Application No 47017/09)4 December 2012, sheds further light on the circumstances in which the persistence of family life would be precarious. The family life of the applicant siblings in Norway had been created at a time when , with their mother , they had been grante d a settlement permit which was later Withdrawn because the mother had obtained it by the provision of false information. The court held at para 79 that, to the mother's knowledge, the persistence of their family life was precarious but at para 90 that there were exceptional circumstances which gave rise to a violation. 34. But the most helpful decision of the ECtHR on this topic is that of the Grand Chamber in Jeunesse v…
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