Birch (Precariousness and Mistake; New Matters)
| Jurisdiction | UK Non-devolved |
| Judge | Mr CMG Ockelton,Lane J |
| Judgment Date | 26 February 2020 |
| Neutral Citation | [2020] UKUT 86 (IAC) |
| Date | 26 February 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2020] UKUT 86 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Mr CMG Ockelton (Vice President)
Mr D Selwood instructed by Wilson Solicitors, for the Claimant;
Mr T Melvin, Senior Home Office Presenting Officer, for the Secretary of State.
Jeunesse v Netherlands 2014 ECHR 12738/10; (2015) 60 EHRR 17
LB (Jamaica) v Secretary of State for the Home Department [2011] EWCA Civ 1420; [2012] Imm AR 637; [2012] INLR 286
R (on the application of Agyarko) v Secretary of State for the Home Department; R (on the application of Ikuga) v Secretary of State for the Home Department[2017] UKSC 11; [2017] 1 WLR 823; [2017] 4 All ER 575; [2017] 3 CMLR 3; [2017] Imm AR 764; [2017] INLR 548
Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536; [2019] 1 All ER 1007; [2019] Imm AR 452; [2019] INLR 233
SC (Bangladesh) v Secretary of State for the Home Department [2018] EWCA Civ 3069
Immigration Rules HC 395 (as amended), paragraph 276ADE
Nationality, Immigration and Asylum Act 2002, sections 117A-B, 81, 84(4) & 85
Tribunals, Courts and Enforcement Act 2007, sections 12(4)(a) & 25
Human rights — Article 8 of the ECHR — private and family life — precariousness and mistake — R (on the application of Agyarko)[2017] UKSC 11 applied — section 117B of the 2002 Act — procedure and process — grounds of appeal — new matters — section 85 of the 2002 Act — prohibition not applicable to UT
The Claimant, a citizen of Jamaica, entered the United Kingdom in 1999 as a visitor. She was subsequently granted leave to remain as a student, valid until 2001. Thereafter, she remained in the United Kingdom without leave. In 2007 or 2008, she was persuaded to pay £3000 to a person posing as an Immigration Officer to regularise her position and obtain a grant of leave. She received a stamp in her passport, appearing to grant her indefinite leave to remain, and a letter confirming the grant. It was accepted that the Claimant was genuinely deceived and that she thought that she had indefinite leave to remain. In 2015, it came to light that the letter granting leave was a counterfeit. Accordingly, the Secretary of State for the Home Department issued a notice that the Claimant was liable to removal.
The Claimant applied for leave to remain on human rights grounds. Her claim was based on her close relationship with her half-sister and her family, with whom she lived, and with a man with whom she had had a long-term relationship since 2007, together with her continuous presence in the United Kingdom for many years. The Secretary of State refused the application on the grounds that the Claimant did not meet the requirements of the Immigration Rules HC 395 (as amended) in any category, and that her circumstances were not such as to give her a right to remain outside the Rules.
On appeal, the First-tier Tribunal (“FtT”) concluded that the Claimant's relationship with her family was nothing more than the normal affection between family members and that she was in close contact with numerous family members in Jamaica. The man she was involved with was married with children and did not propose to leave his wife for her. The FtT cited section 117B of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) and held that the removal decision was not a disproportionate interference with the Claimant's Convention rights.
Before the Upper Tribunal (“UT”), the Claimant submitted that the FtT had failed to follow a “structured approach” in its application of the Immigration Rules and the possibility of success outside them, had failed to apply guidance from the Supreme Court decision in R (on the application of Agyarko) v Secretary of State for the Home Department[2011] UKSC 11, had failed to consider all the relevant factors under section 117B of the 2002 Act, and had failed to strike a fair balance between the individual rights affected and the public interest.
Held, substituting a fresh decision allowing the Claimant's appeal:
(1) There was no merit to the grounds apart from that based on Agyarko. The FtT decision had sufficient structure for its purpose: it considered the potential case under the Rules properly within the context of an appeal on human rights grounds only, and reached a conclusion amply open to it on its own terms. There was nothing in section 117B that the FtT should have considered and did not: Rhuppiah v Secretary of State for the Home Department[2018] UKSC 58 and SC (Bangladesh) v Secretary of State for the Home Department[2018] EWCA Civ 3069 applied (para 11).
(2) Section 117B(5) introduced precariousness as a statutory concept applied in cases where a person had leave (so contrasted with cases where the person had no leave, governed by section 117B(4)): the meaning of precariousness in that context was settled by Rhuppiah. But the introduction of the statutory notion in a case of a person who had leave had not of itself removed the applicability of any non-statutory notion, given the same name, in the case of those who did not have leave. In Agyarko, Lord Reed noted that a less stringent approach might be appropriate for those under a reasonable misapprehension as to their ability to maintain a family life in the United Kingdom. That observation was, despite its context in a discussion of precariousness, capable of being applicable also to a person who had no leave. It would be wrong to confine that notion to cases where a person in fact had some leave and refuse to apply it to a person who in fact had no leave (paras 15 – 16).
(3) Between 2007 or 2008 and 2015, the Claimant thought she had indefinite leave to remain. That was the period when she was developing her relationship with her partner, and formed a considerable part of the time that she was establishing herself in the United Kingdom. In considering the public interest question, the FtT ought to have taken into account whether a “less stringent approach might be appropriate”. It took no notice of the Agyarko approach despite its...
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