Treebhawon and Others (NIAA 2002 Part 5A – Compelling Circumstances Test)
| Jurisdiction | UK Non-devolved |
| Judge | McCloskey J,THE HON. MR JUSTICE MCCLOSKEY |
| Judgment Date | 09 January 2017 |
| Neutral Citation | [2017] UKUT 13 (IAC) |
| Date | 09 January 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2017] UKUT 13 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
[part 1]
The Hon. Mr Justice Mccloskey, PRESIDENT
UPPER TRIBUNAL JUDGE Francis
[part 2]
The Hon Mr Justice Mccloskey, PRESIDENT
The Hon Mr Justice Soole, SITTING AS A JUDGE OF THE UPPER TRIBUNAL
For the Secretary of State: Ms A Fijiwala, Senior Office Home Presenting Officer [Part 1] Ms C Patry, of counsel, instructed by the Government Legal Department [Part 2]
For the Appellant: Mrs H Arrif, Solicitor, of Arden Solicitors Advocates
Treebhawon and Others (NIAA 2002 Part 5A — compelling circumstances test)
-
(I) Where the case of a foreign national who is not an offender does not satisfy the requirements of the Article 8 ECHR regime of the Immigration Rules, the test to be applied is that of compelling circumstances.
-
(II) The Parliamentary intention underlying Part 5A of NIAA 2002 is to give proper effect to Article 8 ECHR. Thus a private life developed or established during periods of unlawful or precarious residence might conceivably qualify to be accorded more than little weight and s 117B (4) and (5) are to be construed and applied accordingly.
-
(III) Mere hardship, mere difficulty, mere hurdles, mere upheaval and mere inconvenience, even where multiplied, are unlikely to satisfy the test of “very significant hurdles” in paragraph 276 ADE of the Immigration Rules.
-
(I) This judgment is in two Parts, in consequence of the conventional (though not invariable) separation of the error of law hearing and the remaking hearing. The error of law decision is reproduced fully in [1] – [26] below. It is reported at [2015] UKUT 00674 (IAC). It is appropriate to note that one aspect of this decision was, in substance, disapproved by a subsequent decision of the Court of Appeal: see MM (Uganda) v SSHD [2016] EWCA Civ 450, concerning section 117C (5) of the 2002 Act. This was followed with notable reluctance by a different division of the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 705, where the judgment of Elias LJ acknowledges the strength of this Tribunal's competing interpretation of section 117B (6) espoused by this Tribunal in the present appeal, contained in Part 1: see [36] – [45]. It may be that the Supreme Court will be the ultimate arbiter. In the meantime, the decision in MM (Uganda) is the binding one concerning section 117C (5) and MA (Pakistan) is binding concerning section 117B (6).
-
(II) The second main aspect of this Tribunal's error of law decision is expressed in the headnote of the initial reported version, at [2015] UKUT. (IAC) in these terms:
Section 117B (4) and (5) are not parliamentary prescriptions of the public interest. Rather, they operate as instructions to courts and tribunals to be applied in cases where the balancing exercise is being conducted in order to determine proportionality under Article 8 ECHR, in cases where either of the factors which they identify arises.
None of the several Court of Appeal decisions belonging to this sphere, promulgated subsequently, calls into question the correctness of this assessment. Indeed, one finds indications of substantially the same approach in the recent decision of the Court of Appeal in Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803 at [49] – [54].
-
(III) Part 2 of this judgment contains our remaking of the decision of the FtT: see [27] – [52].
These conjoined appeals raise interesting questions relating to the construction and application of section 117B (6) of the Nationality, Immigration and Asylum Act 2002 which, so far as the panel is aware, have not previously been the subject of adjudication by the Upper Tribunal.
The Appellants are a family unit consisting of father, one daughter and three sons. All are nationals of Mauritius. The father is aged 44 and the children's ages range from 11 to 17. Their immigration history is as follows:
-
(i) The father claims to have entered the United Kingdom, via Dublin, in 2003.
-
(ii) In November 2007 the oldest child was given leave to enter the United Kingdom and remain for a period of six months. It appears that both she and the children's mother entered around this time.
-
(iii) In February 2008, in response to formal overstaying measures, the father confirmed that his wife and oldest child were in the United Kingdom, representing that they would be returning to Mauritius where their other three children resided.
-
(iv) On 04 August 2010 the second and third of the four children entered the United Kingdom.
-
(v) On 26 December 2011 the youngest of the four children entered the United Kingdom as a visitor.
-
[There is no mention in the papers of the mother of the family postdating this event.]
-
(vi) On 01 February 2013 the Appellants' human rights application was refused.
-
(vii) On 03 April 2013 further representations were made on the Appellants' behalf.
-
(viii) On 10 June 2014, in response to a request for clarification, the Appellants' representatives furnished further submissions.
-
(ix) By a decision dated 24 October 2014 on behalf of the Secretary of State for the Home Department (the “ Secretary of State”), the Appellants' further human rights application was refused.
The latter decision was challenged by the Appellants by appeal to the First-tier Tribunal (the “ FtT”). By its decision promulgated on 17 July 2015, the FtT allowed the appeals “ under the Immigration Rules and under Article 8”. Upon scrutiny, the FtT decided that the appeal of the oldest of the four children succeeded under paragraph 276 ADE(1) of the Rules, while the appeals of the other four family members succeeded under Article 8 ECHR outwith the Rules.
The Secretary of State applied for permission to appeal on the following two grounds:
The latter formulation is ours. Permission to appeal was granted on both grounds.
-
(i) The second Appellant could not satisfy paragraph 276 ADE of the Rules, given the date of the decision, giving rise to a free standing error of law. This is allied to a further contention that this error infected the FtT's Article 8 decision in respect of the other four family members.
-
(ii) The FtT further erred in law in treating section 117B(6) of the 2002 Act as determinative of the public interest question, namely the issue of proportionality under Article 8(2) ECHR and failing to apply the other public interest provisions of the section.
At the material time, paragraph 276 ADE of the Immigration Rules provided:
“276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least seven years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK.
276ADE (2). Sub-paragraph (1)(vi) does not apply, and may not be relied upon, in circumstances in which it is proposed to return a person to a third country pursuant to Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.”
The history, in brief, is that on 09 July 2012, pursuant to HC 194, the Immigration Rules were revised in respect of applications for leave to remain on the ground of private life under Article 8 ECHR (per paragraphs 276 ADE – 276 DH), applications for entry and stay based on family life under Article 8 (Appendix FM) and claims based on Article 8 in the context of deportation (paragraphs 398 – 399B).
These provisions of the Rules have generated much jurisprudence during the last two years. In R (Amin) v Secretary of State for the Home Department [2014] EWHC 2322 (Admin) it was held that paragraphs 276 ADE – 276 DH and Appendix FM do not constitute a comprehensive Article 8 Code. Thus it is recognised that a claim based on Article 8 can, in principle, succeed either under the prescriptive Article 8 regimes within the Rules or outwith the Rules, residually. In Haleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558, the Court of Appeal espoused the test of “ compelling circumstances” in respect of claims outwith the Rules: see [44] and [77]. In MM (Lebanon) v Secretary of State for the Home Department [2014] EWCA Civ 985 the Court of Appeal, in effect, disapproved the suggestion in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin), at [29], that there is an intermediate hurdle to be overcome prior to consideration of Article 8 claims outwith the Rules: per Aikens LJ at [129].
In the Secretary of State's decision it was noted that the longest of the sojourns of the four children [the oldest, the second Appellant] in the...
To continue reading
Request your trial
-
S O Against The Secretary Of State For The Home Department
...into the country to which he would have to go if required to leave the UK (Treebhawon (NIAA Part 5A – compelling circumstances test) [2017] UKUT 00013 (IAC) paragraphs 37 – 38 per McCloskey J at paragraphs 37 – 38). The petitioner has failed to set out a specific risk to him, rather than a ......
-
Sekou Louis Telesphore Ouattara Against The Secretary Of State For The Home Department
...[24] We also note and agree with the observations of McCloskey J in Treebhawon (NIAA Part 5A – compelling circumstances test) [2017] UKUT 00013 (IAC) at paragraph 37 when he said: “ … ‘very significant obstacles’ erects a self-evidently elevated threshold, such that mere hardship, mere diff......
-
Upper Tribunal (Immigration and asylum chamber), 2017-01-09, [2017] UKUT 13 (IAC) (Treebhawon and Others (NIAA 2002 Part 5A - compelling circumstances test))
...serif } Upper Tribunal (Immigration and Asylum Chamber) Treebhawon and Others (NIAA 2002 Part 5A - compelling circumstances test) [2017] UKUT 00013 (IAC) THE IMMIGRATION ACTS Error of law hearing: 28 October 2015 Remaking hearing: 06 December 2016 Part 1 promulgated 19 November 2015 Part 2 ......
-
Upper Tribunal (Immigration and asylum chamber), 2019-12-20, [2019] UKUT 400 (IAC) (SMO, KSP & IM (Article 15(c); identity documents) (CG))
...In Parveen [2018] EWCA Civ 932, Underhill LJ (with whom Gloster and Asplin LJJ agreed), disapproved the gloss placed by Treebhawon [2017] UKUT 13 (IAC) on the test. He emphasised that the task of the Secretary of State or the Tribunal in any given case is simply to assess the obstacles to i......