Deelah and Others (section 117B - ambit)

The four Appellants are nationals of Mauritius and, together, constitute a family unit formed by mother and father (the first two Appellants) and their daughter and son, aged 21 and 14 years respectively. The first Appellant was lawfully present in the United Kingdom from July 2005, initially as a visitor and subsequently, upon conversion, as a student. The other three Appellants entered the United Kingdom lawfully and acquired dependant status. Successive grants of leave to remain ensued. These were followed by several unsuccessful attempts by the first Appellant to acquire further leave to remain as a student. This phase culminated in her application for further leave to remain outside the Immigration Rules, dated 05 April 2013. This elicited, initially, an in-country unappealable refusal decision, followed by a decision to issue removal directions against all Appellants, dated 28 January 2014.

The grounds of the Appellants' appeal to the First-tier Tribunal (the “ FtT”) invoked Article 8 ECHR and section 55 of the Borders, Citizenship and Immigration Act 2009. In dismissing their appeals, the Judge noted in particular that the family unit would be undisturbed by the Secretary of State's decisions. He also highlighted ability to reintegrate into their country of origin; the utility of educational achievements acquired in the United Kingdom; enduring significant family ties with Mauritius; and the ability of the third and fourth Appellants to learn a new language if necessary. The Judge further found certain aspects of the first and second Appellants' evidence unworthy of belief. In making his conclusions he referred explicitly to section 117B(6) and section 117D(1)(a) and (b) of the Nationality, Immigration and Asylum Act 2002.

Following an initial refusal, permission to appeal was granted by a Judge of the Upper Tribunal. Both the grounds of appeal and the grant of permission focus on the new provisions of section 117A and 117B of the Nationality, Immigration and Asylum Act 2002 (the “ 2002 Act”), inserted by the Immigration Act 2014 and operative from 28 July 2014. As the appeal progressed, permission to amend the grounds was granted. As a result, the Appellants' case now telescopes to the following four submissions:

In setting forth the four issues to be decided I have, as regards issues (ii) and (iii), preferred my own formulation which, I am confident, is a fair reflection of the slightly different terms in which they were constructed by Mr Malik on behalf of the Appellants. While each of the four issues shall be addressed seriatim, it is necessary to begin with the relevant statutory provisions.

All statutory references which follow are to the legislation in force at the material time. For convenience, the provisions currently in force are reproduced in the Appendix hereto. The right of appeal against immigration decisions is governed by section 82 of the 2002 Act, the material provisions whereof were, at the material time, these:

“(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.

(2) In this Part “immigration decision” means—

(a) refusal of leave to enter the United Kingdom,

(b) refusal of entry clearance,

(c) refusal of a certificate of entitlement under section 10 of this Act,

(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,

(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,

(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,

(g) a decision that a person is to be removed from the United Kingdom by way of directions under [section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (removal of person unlawfully in United Kingdom),

(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (control of entry: removal),

(ha) a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave),

(i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),

[(ia) a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (seamen and aircrews),]

[(ib) a decision to make an order under section 2A of that Act (deprivation of right of abode),]

(j) a decision to make a deportation order under section 5(1) of that Act, and

(k) refusal to revoke a deportation order under section 5(2) of that Act.

The permitted grounds of appeal are regulated by section 84(1), which provides:

“(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—

(a) that the decision is not in accordance with immigration rules;

(b) that the decision is unlawful by virtue of Article 20A of the Race Relations (Northern Ireland) Order 1997or by virtue of section 29 of the Equality Act 2010 (discrimination in the exercise of public functions etc) so far as relating to race as defined by section 9(1) of that Act;

(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;

(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;

(e) that the decision is otherwise not in accordance with the law;

(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;

(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.

Part 5A of the 2002 Act, introduced by section 19 of the Immigration Act 2014 and in force since 25 July 2014, establishes a new regime under the rubric “Article 8 of the ECHR: Public Interest Considerations”. Section 117A provides:

“(1) This Part applies where a court or tribunal is required to determine whether 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 117B, and

(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

(3) In subsection (2), “the public interest question” means the question of whether an...