November 14, 2018
Today the Supreme Court handed down judgment in the important case of Rhuppiah v SSHD. The Court considered the following questions:
1. The meaning of precarious in s.117B(5) of the Nationality Immigration and Asylum Act 2002 (the "2002 Act");
2. The weight to be given to private life established at a time when the appellant’s immigration status was precarious when conducting the balancing exercise under art.8
3. The weight to be given to financial independence and proficiency in English when conducting the balancing exercise under art.8.
Ms. Rhuppiah, a Tanzanian national came to the UK to study in 1997. She extended her student visa on a number of occasions, up until 2009. Some of the extensions were made out of time by her sponsoring college, resulting in her being unable to qualify for settlement under the immigration rules after 10 years continuous lawful residence. She applied to stay based on the private life she established over many years with family and friends. She cared for one of her friends, Ms. Charles, who was seriously unwell. The Home Office refused to grant her leave to remain. Her appeals to the tribunals (First tier and Upper) were unsuccessful because they felt bound to give ‘little weight’ to her private life, as directed under s 117B(5) of the Nationality Immigration and Asylum Act 2002, on account of her immigration status being ‘precarious’ as a student. No weight was given to her ability to speak English and show financial independence, factors under s 117B(2) and (3) of the same Act. The Court of Appeal upheld those decisions.Shortly before the Supreme Court heard the case, the Home Office granted Ms. Rhuppiah limited leave to remain, on the basis she now met the requirements under paragraph 276ADE(1)(iii) of the Immigration Rules, having been in the UK for 20 years. The Supreme Court went on to determine the appeal, due to the public interest in giving guidance on the correct interpretation of the 2002 Act. The Court adopted a narrow definition of precarious (essentially any status short of Indefinite Leave to Remain is precarious) but also stressed the importance of flexibility when considering the second question in order to make the statute compatible with Article 8 ECHR. This enables a case with sufficiently strong facts to succeed. The Court held that the First Tier Tribunal erred in its approach to this flexibility and may well have allowed Ms. Rhuppiah’s appeal if it had applied the law correctly. While the ability to speak English and be financially independent were held not to be factors that could of themselves warrant the grant of leave to remain, the Court accepted that those factors remain relevant to the assessment of whether removal is proportionate. It is also of note that during the course of the proceedings the Secretary of State conceded that financial independence includes a situation where reliable third party support is provided. The Court allowed the appeal as the Tribunal fell into error by construing financial independence under s 117B(3) as precluding third party support and also because it failed to apply the Act flexibly. This judgment brings legal clarity to the term ‘precarious’ as it applies in private life cases but also reminds decision makers that they must consider such cases with a degree of flexibility as provided for by statute. In Ms. Rhuppiah’s case she was granted leave to remain towards the end of the proceedings and we are pleased that she is now able to move forward with her life.
Muhunthan Paramesvaran, a partner in the firm, acts for Ms. Rhuppiah. Hugh Southey QC of Matrix Chambers and David Sellwood of Garden Court chambers were Counsel instructed in the Court of Appeal and Supreme Court.
If you have a family case where you require some advice or representation, please contact Mavis for an appointment with a family solicitor on 020 8885 7986.