Rhuppiah v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeSir Stephen Richards,Lord Justice Sales
Judgment Date02 August 2016
Neutral Citation[2016] EWCA Civ 803
Docket NumberCase No: C5/2015/1934
Date02 August 2016

[2016] EWCA Civ 803

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

IA238852013

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Moore-Bick

Lord Justice Sales

and

Sir Stephen Richards

Case No: C5/2015/1934

Between:
Rhuppiah
Appellant
and
Secretary of State for the Home Department
Respondent

Hugh Southey QC and David Sellwood (instructed by Wilsons Solicitors LLP) for the Appellant

Andrew Byass (instructed by Government Legal Department) for the Respondent

Hearing date: 21 st July 2016

Approved Judgment

Lord Justice Sales
1

The appellant entered the UK on a student visa in 1997 and has been resident here since then, but as an overstayer since her leave to remain as a student (extended from time to time) expired in November 2009 and her appeal rights were exhausted on 11 October 2010. She sought leave to remain from the Secretary of State outside the Immigration Rules, relying on her rights under Article 8 of the European Convention of Human Rights as applied by the Human Rights Act 1998, but this was refused in June 2013 and removal directions were set. The appellant appealed to the First-tier Tribunal ("FTT") which dismissed her appeal by a decision promulgated in August 2014 (FTT Judge Blundell). She appealed to the Upper Tribunal (Deputy Upper Tribunal Judge E.B. Grant), which by a decision of December 2014 found no error of law on the part of the FTT and dismissed her appeal. She now appeals to this court.

2

Since the FTT's decision was upheld by the Upper Tribunal, the operative decision in issue on the appeal is that of the FTT, the question being whether it made a material error of law.

3

The appeal gives rise to issues of interpretation of the new provisions at sections 117A to 117D in Part 5A of the Nationality, Immigration and Asylum Act 2002 (as inserted by the Immigration Act 2014).

4

Part 5A provides in relevant part as follows:

"PART 5A

ARTICLE 8 OF THE ECHR: PUBLIC INTEREST CONSIDERATIONS

117A Application of this Part

(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 interference with a person's right to respect for private and family life is justified under Article 8(2).

117B Article 8: public interest considerations applicable in all cases

(1) The maintenance of effective immigration controls is in the public interest.

(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—

(a) are less of a burden on taxpayers, and

(b) are better able to integrate into society.

(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—

(a) are not a burden on taxpayers, and

(b) are better able to integrate into society.

(4) Little weight should be given to—

(a) a private life, or

(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.

(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.

117C Article 8: additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where—

(a) C has been lawfully resident in the United Kingdom for most of C's life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.

117D Interpretation of this Part

(1) In this Part—

"Article 8" means Article 8 of the European Convention on Human Rights;

"qualifying child" means a person who is under the age of 18 and who—

(a) is a British citizen, or

(b) has lived in the United Kingdom for a continuous period of seven years or more;

"qualifying partner" means a partner who—

(a) is a British citizen, or

(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 — see section 33(2A) of that Act).

5

The appellant is not a foreign criminal and section 117C has no application in her case. But it is relevant to refer to section 117C when addressing the issues of interpretation which we have to consider.

The factual background

6

The facts of the case can be summarised as follows. The appellant is a national of Tanzania born on 26 October 1973. She entered the UK in September 1997 with entry clearance as a student. She was granted further periods of leave to remain as a student until the end of November 2009.

7

In accordance with the Immigration Rules in force at the times of each application for leave to enter or remain in the UK as a student, in her applications the appellant had to demonstrate that she was pursuing a course of study in the UK and had to state her intention in each case to leave the UK at the end of her studies.

8

From about 2001 the appellant has lived with her friend from college, Ms Charles, in London. Like the appellant, Ms Charles was in the UK as a student at that time. Ms Charles is now employed as a systems engineer for Ministry of Defence Projects.

9

Ms Charles became ill with ulcerative colitis and from about 2005 has experienced difficult symptoms requiring multiple admissions to hospital. Ms Charles is now heavily dependent on the appellant, who provides a range of care for her to support her in her daily life, including travelling with her to job assignments out of London, preparing food for her carefully managed diet, helping to manage her financial affairs and looking after her when she is seriously unwell. The appellant does this out of friendship and by reason of her faith as a committed Seventh Day Adventist. Ms Charles is terrified at the prospect of the appellant's removal from the UK, and fears that she would be unable to continue working if the appellant was no longer looking after her.

10

The appellant has a significant commitment to helping with charitable activities for her church.

11

The appellant's brother and his wife and daughter, McKenya, live in Basingstoke. McKenya was born on 6 May 2009. The appellant visits the family in Basingstoke regularly and speaks to them on the telephone. Her brother described her as a "hands on aunt".

12

The appellant speaks fluent English. Although she has had some periods of employment in the UK, the FTT found that she is not financially independent: she receives her board and lodging free from Ms Charles and her father pays her a maintenance allowance; the appellant "depends on others for all of her funds": FTT para. [57].

13

On 28 November 2009 the appellant applied for Indefinite Leave to Remain ("ILR") on the basis of her length of residence in the UK. That application was refused on 12 February 2010; her appeal was dismissed on 16 August 2010; permission to appeal was refused; and her statutory appeal rights became exhausted on 11 October 2010.

14

The appellant has been an overstayer in the UK, and her presence here unlawful, since 11 October 2010.

15

On 1 July 2012, the appellant made an application for ILR on grounds of long residence which was invalid, by reason of being made on the wrong form as a result of the ineptitude of the college on which she relied to make the application on her behalf. On 8 August 2012 she applied again, this time using the correct form. But in the intervening period new Immigration Rules had come into effect on 9 July 2012, and she was unable to show that she was entitled to leave to remain or ILR under those new rules. It...

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