GM (Sri Lanka) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Green |
| Judgment Date | 04 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1630 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2016/0562 |
| Date | 04 October 2019 |
[2019] EWCA Civ 1630
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Upper Tribunal
(Immigration and Asylum Chamber)
AA039852015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Green
and
Lady Justice Simler
Case No: C5/2016/0562
Mr Zainul Jafferji & Mr Arif Rehman (instructed by Tamil Welfare Association (Newham)) for the Appellant
Ms Katherine Apps (instructed by Government Legal Department) for the Respondent
Hearing date: Thursday 25th July 2019
Approved Judgment
A. Introduction
This is the judgment of the Court.
The Appellant appeals against the dismissal of her appeal by the Upper Tribunal (“UT”) on 2 nd December 2015 upholding the decision of the First-Tier Tribunal (“FTT”) of 25 th August 2015 upholding the decision of the Secretary of State of 20 th February 2015 (“the Decision” and “the Respondent” respectively), refusing her application for asylum and for leave to remain on human rights grounds outside the Immigration Rules (“IR”) and seeking to remove her from the United Kingdom.
The judgment under appeal was made in 2015. Since then the Supreme Court has clarified a series of issues relating to the test to be applied under Article 8 in relation to the IR and section 117B Nationality, Immigration and Asylum Act 2002 (“the NIAA 2002” and “section 117B”). The main judgments are: Agyarko v SSHD [2017] UKSC 11 (“ Agyarko”); Ali v SSHD [2016] UKSC 60 (“ Ali”); KO (Nigeria) v SSHD [2018] UKSC 53 (“ KO”); and, Rhuppiah v SSHD [2018] UKSC 58 (“ Rhuppiah”).
These judgments clarify such matters as: the application of the applicable proportionality test and the relative weight to be attached to various factors in the balancing and weighing exercise; the relationship between the IR, the NIAA 2002 and Article 8; the meaning of “ little weight” in sections 117B(4) and (5); the extent to which the “ little weight” test applies to family rights; the relevance of a person's immigration status in a family life assessment; and the relevance of “ insurmountable obstacles” to return in the family life context.
The FTT Judge in the present case did not have the benefit of these judgments. She plainly adopted considerable care in her approach to the evidence and the law. And it is right to note that the focus of the appeal before her was on the asylum claim of the Appellant. The Article 8 family rights issues were secondary, albeit, as is evident from the material before the FTT and included in the bundles before us, they were not advanced merely as a makeweight. A serious argument was advanced.
It is our judgment that (not having had the benefit of the Supreme Court rulings to guide her) the Judge erred in the approach that she adopted to the issue relating to Article 8 family life rights. This is the context in which we have concluded that the Decision, and the judgment and decisions of both the FTT and the UT must be set aside.
The position of the family has materially changed in the period elapsing between the FTT judgment and this appeal. This means that in this appeal we must consider to what extent the decision we take reflects the most up to date position. This raises a point of principle. When a Court is required to address an issue relating to fundamental norms or human rights that Court must ensure that any order that it makes is also compliant with such rights. Under section 6 Human Rights Act 1998 all public bodies, including courts, must apply the Act and thereby the ECHR. It follows that if an appellate court finds that a lower court or tribunal acted lawfully by reference to the evidence before it but that based upon the facts now known to the appeal court to uphold the decision would violate fundamental norms, then the appellate court must ensure that the decision it takes is compliant with the law. This was made clear by Lord Reed in Agyarko (ibid) paragraph [5]. In this case there has been a material change of circumstances brought about primarily by fresh decisions made by the Respondent which have fundamentally altered the legal position of the Appellant's husband and children by conferring settled status upon them. Mr Jafferji, for the Appellant, argued that the sensible way to proceed was to address the impugned FTT decision upon the basis of the evidence that was before the Judge but, in the light of our conclusion, then to consider the up to date evidence in relation to what follows by way of relief, in other words, to defer consideration of the changed circumstances. Ms Apps, for the Respondent, did not demur that there would need to be a two stage process, but reserved the Secretary of State's position on relief as subject to instructions. This is the course we have adopted.
We therefore consider the present-day evidence when it comes to relief. We set out our conclusions on this at section F below. In short, to give effect to our conclusion that the FTT erred we will simply set aside the Decision and relevant judgments. We will not remit the matter back to the FTT. We direct that the Respondent considers the position of the Appellant afresh, in the light of the altered circumstances. We leave it, in the first instance, to the Appellant and the Respondent to discuss and agree the best way in which this can be achieved.
We heard argument in this case on 25 th July 2019. We are grateful to both counsel for their careful written and oral submissions which raised a series of interesting and difficult points about the scope and effect of the test to be applied in cases such as this, in the light of the recent guidance of the Supreme Court. We indicated the result of this appeal at the end of the hearing, namely that the appeal would be allowed. However, we reserved judgment in order that we could consider carefully the points arising.
B. Relevant Facts
(i) Key dates
The Appellant is a national of Sri Lanka, born on 13 th August 1978. She arrived in the United Kingdom on 18 th January 2010 with entry clearance as a student. In or about January 2011, the Appellant met her husband. They were married on 13 th August 2012. The Appellant's leave to remain expired on 30 th May 2013. The Appellant's husband had been granted limited leave to remain until 2018. He had been in the United Kingdom since 1998 and had not returned to Sri Lanka since that date. The couple had a child, born on 31 st October 2012.
On 1 st September 2014, the Appellant claimed asylum and also advanced an argument based upon the human rights claim. The Decision of the Respondent was issued on 20 th February 2015. It rejected both the asylum application and the human rights claim. An appeal against the Decision was lodged with the FTT. By this time the Appellant had a second child with her husband. The decision of the FTT Judge was promulgated on 25 th August 2015. It rejected the appeal on all grounds. A subsequent appeal to the UT was rejected on 7 th December 2015.
(ii) The Decision
The Decision focused upon the Appellant's asylum application and dealt secondarily with the claim under Article 8. In paragraph [37], it is stated that the Appellant's husband was not “ settled” in the United Kingdom because he only had limited leave to remain until 5 th February 2018 and the Appellant was not therefore entitled to apply for leave to remain as a parent. The Respondent considered exceptional circumstances and referred briefly to the fact that the husband had recently been granted discretionary leave to remain outside the IR. In paragraph [41] the Respondent focuses upon the absence of insurmountable obstacles to return as a reason for rejecting exceptional circumstances:
“This is due to the fact that you and your husband are both Sri Lankan nationals, there are no apparent obstacles to you living together as a family in Sri Lanka…. Furthermore, it is noted that according to your marriage certificate, you married your husband in 2012, meaning at the time of your marriage you were aware that your status in the UK was temporary on a student visa, and you would have been aware that you were expected to return to […] Sri Lanka upon expiry of this visa. Given the young age of your daughter, it is considered that there are no significant obstacles to her integration to life in Sri Lanka. Additionally, given that your asylum claim has been rejected in its entirety (save for your marriage), it is not accepted that there are any risks on return to Sri Lanka for you and your family on the basis [of] your asylum claim.”
The Respondent considered the best interests of the child pursuant to Section 55 Borders, Citizenship and Immigration Act 2009. The decision of the UT in E-A (Article 8 – best interests of child) Nigeria [2011] UKUT 315 was cited for the proposition that the starting point in considering the welfare and best interest of a young child, was that the child should live with and be brought up by his or her parents subject to any very strong contra-indication. The Decision indicates that those who have families with them during a period of study in the United Kingdom must do so in the light of an expectation of return. In paragraph [44], it is stated that it is considered in the Appellant's child's best interest “ …to live with and be brought up by you” ie. by the child's mother.
(iii) The First Tier Tribunal (FTT)
Before the FTT the grounds focused mainly upon the asylum claim. But the appeal also concerned Article 8 which, as already observed, was fully argued. It was not an afterthought. The Article 8 appeal is dealt with briefly in the judgment. The approach adopted by the Judge can be distilled as follows:
a) The Appellant did not meet the requirements of the IR (paragraph [37] and her case therefore had to be considered under Article 8 outside...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2019-12-18, HU/06179/2017
...additional time to consider their position in the light of further authorities, including inter alia, GM (Sri Lanka) v SSHD [2019] EWCA Civ 1630 and CI (Nigeria) v SSHD [2019] EWCA Civ 2027. Mr Whitwell relied upon a comprehensive skeleton argument. He acknowledged that conditions in Zimbab......
-
Upper Tribunal (Immigration and asylum chamber), 2020-03-02, HU/23390/2018
...State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799; para 32; GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630, para 33. It is also worth noting that in the Jeunesse case the Court concluded that on the facts refusing the applicant residence in th......
-
Cathrine Lal v The Secretary of State for the Home Department
...life: see also R (Ali) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799, para 32; GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630, para 33. It is also worth noting that in the Jeunesse case the Court concluded that on the fac......
-
Fahmida Khanom Runa v Secretary of State for the Home Department
...in such circumstances, the answer would be No. 31 Mr Biggs also placed reliance on the decision of this Court in GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630, in particular at para. 34, where he submits this Court adopted a hypothetical approach. However......