Rhuppiah v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Wilson,Lord Carnwath,Lord Hughes,Lady Black,Lord Lloyd-Jones
Judgment Date14 November 2018
Neutral Citation[2018] UKSC 58
CourtSupreme Court
Date14 November 2018
Rhuppiah
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

[2018] UKSC 58

Before

Lord Wilson

Lord Carnwath

Lord Hughes

Lady Black

Lord Lloyd-Jones

Supreme Court

Michaelmas Term

On appeal from: [2016] EWCA Civ 803

Appellant

Hugh Southey QC

David Sellwood

(Instructed by Wilson Solicitors LLP)

Respondent

Lisa Giovannetti QC

Andrew Byass

(Instructed by The Government Legal Department)

Heard on 10 July 2018

Lord Wilson

( with whom Lord Carnwath, Lord Hughes, Lady Black and Lord Lloyd-Jones agree)

The Primary Question
1

The Home Secretary determines to exercise his power to remove a foreign national from the UK. The foreign national contends that the determination is unlawful on the ground that her removal would violate her right to respect for her private life under article 8 of the European Convention on Human Rights and section 6(1) of the Human Rights Act 1998 (“the 1998 Act”). Section 117B(5) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) provides that little weight should be given to a private life which she established at a time when her immigration status was “precarious”. What does the word “precarious” mean in this context? This is the primary question posed by the present appeal.

Introduction
2

The foreign national is Ms Rhuppiah. On 22 August 2014, in the First-tier Tribunal, First-tier Tribunal Judge Blundell (to whom I will refer as Judge Blundell) reluctantly dismissed her challenge under article 8 to the Home Secretary's determination, dated 6 June 2013, to remove her from the UK. Judge Blundell concluded that her private life in the UK had been established at a time when her immigration status had been precarious within the meaning of section 117B(5), which had come into force less than a month earlier; and he considered himself in effect bound by the subsection to dismiss her appeal against the determination. Her further appeals to the Upper Tribunal and then to the Court of Appeal both failed. By its decision dated 2 August 2016, [2016] EWCA Civ 803, [2016] 1 WLR 4203, the Court of Appeal (Sales LJ, who gave the substantive judgment, and Moore-Bick LJ and Sir Stephen Richards, who agreed with it) upheld Judge Blundell's conclusion that the establishment of Ms Rhuppiah's private life in the UK had occurred at a time when her immigration status had been precarious. Now she appeals against the decision of the Court of Appeal. Within the well-known structure of article 8, the primary question arises as part of the inquiry into whether the proposed interference with Ms Rhuppiah's private life in the UK is proportionate. Therefore, in determining this appeal, this court, like the Upper Tribunal and the Court of Appeal, must ask itself whether Judge Blundell was wrong to hold that at the relevant time her immigration status had been precarious: see the judgment of Lord Carnwath in R (R) v Chief Constable of Greater Manchester Police [2018] UKSC 47, [2018] 1 WLR 4079, paras 53 to 64.

3

As it happens, Ms Rhuppiah's appeal has recently become academic. This occurred on 9 February 2018; and explanation of it requires reference to the Immigration Rules HC 395 (“the rules”).

4

The Home Secretary has set out in the rules, indorsed by Parliament, the provisions which, in his opinion reflective of his policy, should in principle govern his determination of claims to resist removal from the UK on the part of those in breach of immigration laws by reference to their right to respect for their private or family life under article 8. He recognises, however, that his obligation under section 6 of the 1998 Act, like that of a court hearing an appeal against his determination when based on article 8, is to act compatibly with rights under article 8 and that such compatibility may not always coincide with compatibility with his rules. So, like the courts, the Home Secretary has to allow for the possibility that a person may be entitled to resist removal under article 8 even when he or she cannot do so under the rules. But article 8 itself, as interpreted by the European Court of Human Rights (“the ECtHR”), confers upon the relevant policy-maker, who in the UK is the Home Secretary, a limited discretion in relation to the determination of claims made under it. So, when a person claims to resist removal by reference to article 8 outside the rules, the Home Secretary is entitled, and a court hearing an appeal against his determination is required, to weigh in the balance against the claim the fact that it could not have succeeded under the rules: see the judgment of Lord Reed in R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11, [2017] 1 WLR 823, at paras 46 and 47.

5

In these proceedings Ms Rhuppiah has been resisting removal by reference to article 8 outside the rules. What happened on 9 February 2018 was that the Home Secretary decided that she had recently become able to resist removal by reference to article 8 under the rules. As I will explain, Ms Rhuppiah entered the UK on 16 September 1997 and has lived here continuously ever since. Paragraph 276ADE(1) of the rules specifies the requirements to be met by an applicant for leave to remain in the UK on the ground of private life in the UK; and they include, at (iii), that he or she has lived continuously in the UK for at least 20 years. It follows that on 16 September 2017 Ms Rhuppiah began to satisfy the requirement at (iii); she also satisfied the other requirements. Paragraph 276BE(1) provides that, if the requirements of para 276ADE(1) are satisfied, the Home Secretary may grant leave to remain in the UK for up to 30 months; and para 276DE provides that, if an applicant has remained in the UK with continuous leave on the ground of private life for at least ten years, he or she may be granted indefinite leave to remain.

6

Thus it was that by letter dated 9 February 2018, the heading of which referred to Private Life Rules, the Home Secretary (to whom, for convenience, I will throughout refer as male) informed Ms Rhuppiah that he had granted her leave to remain in the UK for 30 months; that she could apply for further limited leave prior to the end of that period; and that, in the event that she were to complete at least ten years of continuous residence pursuant to leave to remain on the ground of her private life, she might then be eligible for a grant of indefinite leave to remain in the UK.

7

The result is that the Home Secretary then granted to Ms Rhuppiah all that she could have hoped to achieve in the present proceedings. Thought then turned to the utility of any further prosecution of the present appeal. In the event the court agreed with the parties that the appeal should proceed. The court agreed that it was of general importance for it to offer a definitive interpretation of the word “precarious” in section 117B(5) of the 2002 Act. It is also now clear, as both parties agree, that in any event the First-tier Tribunal (and indeed the Court of Appeal) fell into error in a different respect and that, irrespective of whether it was material, the error requires to be rectified: see paras 51 to 57 below.

8

So the appeal has proceeded. Were this court to conclude that the First-tier Tribunal had been wrong in a material respect to dismiss Ms Rhuppiah's appeal against the Home Secretary's determination dated 6 June 2013, it would allow her appeal in the normal way and set aside the tribunal's order. That would render Ms Rhuppiah's appeal against it undecided. But there is now no need for it to be decided. So the court would not remit it to the tribunal for fresh determination.

The Facts
9

The relevant facts can be taken from a determination of conspicuous clarity and sensitivity made by Judge Blundell following a substantial oral hearing.

10

Ms Rhuppiah is a Tanzanian national, now aged 45. She lived in Tanzania until 1997, when she entered the UK with leave to reside here as a student for three months. Her mother and one of her brothers still reside in Tanzania. Her father works for the UN in Sudan and regularly sends money to the UK for her support. Her other brother lives in Basingstoke; and he has a daughter, aged nine, with whom she is on close terms. There would, however, be no significant obstacle to the re-integration of Ms Rhuppiah into society in Tanzania.

11

The Home Secretary granted further leave to Ms Rhuppiah to reside in the UK as a student on no less than 12 occasions. The final grant expired on 30 November 2009. But six of these further grants were made pursuant to applications made after the previous leave had expired. Responsibility for the delay usually lay with the college to which Ms Rhuppiah had entrusted the task of making the applications on her behalf.

12

In making her applications for further leave to reside in the UK as a student, Ms Rhuppiah was required to demonstrate an intention to leave the UK at the end of her studies. On each occasion she did so to the satisfaction of the Home Secretary. In cross-examination before the tribunal she accepted that she always expected to be required to leave the UK at some point.

13

As a result of her extensive studies in the UK, Ms Rhuppiah, who speaks English fluently, gained a variety of qualifications in business studies and associated fields.

14

In November 2009, at the time of the expiry of the final grant of leave, Ms Rhuppiah applied for indefinite leave to remain in the UK on the ground of continuous lawful residence in the UK for at least ten years pursuant to what was then para 276B(i)(a) of the rules. The trouble was that her continuous residence had not always been lawful. The Home Secretary refused her application and the First-tier Tribunal dismissed her appeal against the refusal. When, on 11 October 2010, the Upper Tribunal refused to grant her leave to appeal against the dismissal, Ms Rhuppiah became...

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