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 because of gaps in the lawfulness of her stay, and her application had been on the wrong form, and before re-applying, the Rules changed against her, and she could only rely on Human Rights grounds. Leave was refused. The court considered the meaning of having a precarious immigration status, and the regard to be had to her private life.
Held: Her appeal (now academic) was granted. A refusal of leave to remain was capable of interfering with article 8 rights, with limited discretion to justify that interference. The HS was prompted by section 110A(2) to regard the public interest in using that discretion, and that may include maintenance of immigration control. The result was that a person’s presence might be precarious though lawful. Applying the concept of precariousness does not depend on a subtle evaluation of the overall circumstances as suggested by the Court of Appeal. Therefore, it differentiated the situation of an applicant who was no more than tolerated by the host state during her applications for residence, from ‘settled migrants’ with a right of residence. The Court had already addressed this ECtHR decision, finding that family life will be precarious if created when an applicant was here unlawfully or temporarily.
ECHR jurisprudence approached the concept of precariousness in the context of the right to family life by asking whether the family life was created at a time when the parties knew that the immigration status of one of them made its persistence in the host state precarious from the outset.
Precariousness within section 117B applies to private life. The UT had held that an immigration status under the section 117B if his presence was dependent upon a further grant of leave. That decision was now approved.
A non UK citizen, present in the UK with leave to reside other than indefinitely, has a precarious immigration
status for the purposes of section 117B(5). The FTT nonetheless erred in concluding that Ms R was not financially independent within section 117B(3). The Supreme Court holds that ‘financially independent’ in section
117B(3) means ‘not financially dependent upon the state’. It therefore allowed her appeal.
Lord Wilson, Lord Carnwath, Lord Hughes, Lady Black, Lord Lloyd-Jones
[2018] UKSC 58, UKSC 2017/0075, [2019] 1 All ER 1007, [2019] INLR 233, [2019] Imm AR 452, [2019] HRLR 4, [2018] 1 WLR 5536
Bailii, Bailii Summary, SC, SC Summary, SC Videos Summary, SC 2018 Jul 10 am Video, SC 2018 Jul 10 pm Video
European Convention on Human Rights, Nationality, Immigration and Asylum Act 2002 117A(2) 117B(5), Human Rights Act 1998 6
England and Wales
Citing:
Appeal from – Rhuppiah v Secretary of State for The Home Department CA 2-Aug-2016
The claimant had entered as a student but had overstayed, and having exhausted her appeal rights she sought proection under human rights law. . .
Cited – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
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 . .
Cited – AR, Regina (on The Application of) v Chief Constable of Greater Manchester Police and Another SC 30-Jul-2018
The appellant had been tried for and acquitted on a criminal charge. He now challenged the disclosure by the respondent of the charge in an Enhanced Criminal Record Certificate.
Held: His appeal failed. The critical question was whether the . .
Cited – Patel and Others v Secretary of State for The Home Department SC 20-Nov-2013
The court was asked as to the respective duties of the Secretary of State and the First-tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, and more particularly as to the . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 October 2021; Ref: scu.628674
