Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the Secretary of State by the 1998 Act to act compatibly with the right to respect for family life guaranteed by article 8 of the ECHR. In each case, the Secretary of State concluded that the appellant did not qualify for leave to remain under the applicable provisions of Appendix FM to the Immigration Rules and that, applying the Immigration Directorate Instructions, ‘Family Members Under the Immigration Rules, Section FM 1.0, Partner and ECHR Article 8 Guidance’ there were no exceptional circumstances warranting the grant of leave to remain outside the Rules.
Held: The appeals failed. The Rules and Instructions applied in these cases were consistent with the proper application of article 8.
In the first case, there was no evidence placed before the respondent that there were exceptional circumstances. Ms Agyarko’s claim could not be regarded as very strong or compelling.
As to Ms Ikuga, part of the decision was incorrectly based. However, looking at the decision taken, the result would have been the same, and she not having put forward anything which might constitute ‘exceptional circumstances’ as defined in the Instructions, that is unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate.
The ground of challenge under Article 20 EU failed. If a situation were to arise in which the refusal of a third-country national’s application for leave to remain in the UK would force his or her British partner to leave the EU, in breach of article 20 TFEU, such a situation could be addressed under the Rules as one where there were ‘insurmountable obstacles’, or in any event under the Instructions as one where there were ‘exceptional circumstances’. Typically, however the British citizen would not be forced to leave the EU, any more than in the case of Dereci, and the third-country national would not, therefore, derive any rights from article 20 .
Judges:
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Reed
Lord Carnwath
Lord Hughes
Lord Hodge
Citations:
[2017] UKSC 11, [2017] WLR(D) 126, [2017] 3 CMLR 3, [2017] 1 WLR 823, [2017] Imm AR 764, [2017] INLR 548, UKSC 2015/0129
Links:
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video
Statutes:
Human Rights Act 1998, European Convention on Human Rights 8
Jurisdiction:
England and Wales
Citing:
Appeal from – Agyarko and Others, Regina (on The Application of) v The Secretary of State for The Home Department CA 6-May-2015
Appeals against orders for removal after applicants had each married after expiry of the period of their lawful stay. A conceded that her application fell outside the Rules, but said that it was an appropriate case for the exercise of discretion. . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Chikwamba v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing . .
Cited – Ruiz Zambrano (European Citizenship) ECJ 8-Mar-2011
ECJ Citizenship of the Union – Article 20 TFEU – Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the . .
Cited – Munir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
Cited – Jeunesse v The Netherlands ECHR 3-Oct-2014
(Grand Chamber) Although the applicant had married and had three children while her immigration status in the Netherlands was precarious, there were exceptional circumstances such that a fair balance had not been struck between the competing . .
Cited – Sen v The Netherlands ECHR 21-Dec-2001
. .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – Tuquabo-Tekle and Others v The Netherlands ECHR 1-Dec-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection dismissed (estoppel); Violation of Art. 8; Pecuniary damage – claim dismissed; Non-pecuniary damage – financial award; Costs and expenses . .
Cited – Sezen v The Netherlands ECHR 31-Jan-2006
The case concerned ‘a functioning family unit where the parents and children are living together’. The court considered wehether a deportation would infringe the human rights of te applicant: ‘The Court has previously held that domestic measures . .
Cited – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Cited – MF (Nigeria) v Secretary of State for The Home Department CA 8-Oct-2013
The court was asked: ‘How is the reference in rule 398 to ‘exceptional circumstances’ to be understood, compatibly with Convention rights?’
Held: The Court of Appeal accepted the submission made on behalf of the Secretary of State that the . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – Dereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .
Cited – Secretary Of State For The Home Department v CS (Judgment : Citizenship Of The Union) ECJ 13-Sep-2016
The Court of Justice held: ‘that there are very specific situations in which, despite the fact that the secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom . .
Cited – Alokpa and Moudoulou v Ministre Du Travail, De L’Emploi Et De L’Immigration ECJ 10-Oct-2013
ECJ Citizenship of the Union – Articles 20 TFEU and 21 TFEU – Directive 2004/38/EC – Right of residence of a third-country national who is a direct relative in the ascending line of Union citizens who are minor . .
Cited – Iida v Stadt Ulm ECJ 8-Nov-2012
ECJ Articles 20 TFEU and 21 TFEU – Charter of Fundamental Rights of the European Union – Article 51 – Directive 2003/109/EC – Third-country nationals – Right of residence in a Member State – Directive 2004/38/EC . .
Cited by:
Cited – HC, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-Nov-2017
This appeal concerns the rights of so-called ‘Zambrano carers’ and their children to financial support from the state. The appellant, an Algerian national married and had children here, but was refused housing after the break up the marriage. HC . .
Cited – Rhuppiah v Secretary of State for The Home Department SC 14-Nov-2018
Ms R had overstayed, but resisted deportation claiming a long term relationship with a man for who she cared. Her leave was continued 11 times. A Seventh Day Adventist, the care she provided was as a friend. Indefinite leave to remain was refused . .
Cited – Patel v Secretary of State for The Home Department SC 16-Dec-2019
Zambrano states that a non-member state national (‘TCN’) parent of an EU citizen child resident within the EU is entitled to
reside in the EU. This is solely to avoid the EU citizen child being deprived of the substance of their Union . .
Cited – Dereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .
Lists of cited by and citing cases may be incomplete.
Immigration, Human Rights, European
Updated: 16 May 2022; Ref: scu.575309