The review covers EU law, Article 8, health cases, the latest on the Educational Testing Services (‘ETS’) cases, procedural guidance on grants of permission to appeal and amending grounds in judicial reviews, protection claims and trafficking of persons. This review has been specifically written for Lexis®PSL Immigration.
Article 8 in the Supreme Court
The second half of 2018 was dominated by two much anticipated Article 8 decisions from the Supreme Court. In KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent)  UKSC 53 (24 October 2018) the Supreme Court considered ‘qualifying children’ and their parents, under the statutory regime contained in Part 5A of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002). The Supreme Court also considered related issues under para 276ADE(1)(iv) of the Immigration Rules.
Lord Carnwath’s starting presumptions  were that the changes to the rules and legislation were intended to produce a straightforward set of rules which narrow rather than widen the residual area of discretionary judgment and that the provisions are intended to be consistent with the general principles relating to the best interests of children including the principle that a child must not be blamed for the sins of its parent (Zoumbas v Secretary of State for the Home Department  UKSC 74).
In respect of NIAA 2002, para 276ADE(1)(iv) and s 117B(6) Lord Carnwath found [16–17] that the focus was on the child and that there was no requirement to consider the criminality or misconduct of a parent as a balancing factor when considering what was reasonable for the child. Lord Carnwath endorsed the list of relevant factors set out in the SSHD’s IDI.
However, the assessment of reasonableness is to be made in the real world context considering where the parents are expected to be and that it is normally reasonable for children to be with their parents. The record of the parents will therefore be indirectly material to the assessment of reasonableness [17–19].
In respect of NIAA 2002, s 117C and the ‘unduly harsh’ test set out in exception 2, the focus was on the child (or partner) and there was not requirement to balance the severity of the parent’s offence [21–22] or show ‘very compelling’ reasons. However, ‘unduly harsh’ is a higher test than that of reasonableness and ‘unduly’ goes beyond the level of harshness which may be justifiable in the relevant context .
Lord Carnwath went onto consider the individual cases and as a postscript expressed concern that there had been disagreeing UT decisions on this issue and suggested using the ‘starred decisions’ provision to provide authoritative case law.
Lord Carnwath lamented the time it had taken for these cases to reach the Supreme Court and suggested that the ‘leapfrog’ procedure could be used in the future where future cases raised comparable issues and required speedy resolution.
Following the judgment in KO the SSHD has amended his policy document ‘Appendix FM 1.0b: family life (as a partner or parent) and private life: 10-year routes’ publishing a new version on 19th December 2018. The updated guidance includes a revision to the section entitled ‘Would it be reasonable to expect the child to leave the UK?’ (Pages 68–70).
The second offering from the Supreme Court was the case of Rhuppiah v Secretary of State for the Home Department  UKSC 58 (14 November 2018). NIAA 2002, s 117B(5) provides that little weight should be given to a person’s private life which they established at a time when their immigration status was ‘precarious.’ The primary question for the Supreme Court was therefore what does the word ‘precarious mean.’
Ms Rhuppiah was a student in the United Kingdom and during that time had become the carer for her friend Ms Charles who suffers from ulcerative colitis. Ms Rhuppiah’s appeal was dismissed by the FTT and her further appeals to the UT and Court of Appeal were dismissed.
Lord Wilson found  that that everyone who, not being a UK citizen, is present in the UK and who has leave to reside here other than to do so indefinitely has a precarious immigration status for the purposes of NIAA 2002, s 117B(5). In so doing Lord Wilson relied on the decision of the UT in AM (S117B) Malawi  UKUT 260 (IAC) and made obiter comments  that there may be some support for the view in AM that even a grant of indefinite leave to remain might yield a precarious immigration status if the grant had been obtained by deception or the person had embarked on a course of criminal conduct which would justify its withdrawal.
The Supreme Court’s ‘bright line’ approach to precariousness contrasted with the provisional view of Sales LJ, in the Court of Appeal (Rhuppiah v Secretary of State for the Home Department  EWCA Civ 803), which was that leave to remain short of indefinite leave might sometimes confer on a person a status not properly to be described as precarious—and that the concept of precariousness might fall to be applied having regard to the person’s overall circumstances.
The Supreme Court went on to find , however, that NIAA 2002, s 117B cannot put decision makers in a strait jacket and that NIAA 2002, s 117A(2)(a) contained a limited degree of flexibility. Lord Wilson approved the comments of Sales LJ who had stated at  of the Court of Appeal judgment ‘…Although a court or tribunal should have regard to the consideration that little weight should be given to private life established in [the specified] circumstances, it is possible without violence to the language to say that such generalised normative guidance may be overridden in an exceptional case by particularly strong features of the private life in question…’. Lord Wilson expressed surprise that Sales LJ had found that Ms Rhuppiah’s was not such a case .
The Supreme Court went on to consider the meaning of ‘financial independence’ set out in s 117B(3) NIAA 2002 . The SSHD agreed that the FTT and the Court of Appeal were in error to find that Ms Rhuppiah was not financially independent as she relied upon support from her father and Ms Charles [52–53]. The SSHD changed his mind following R (MM (Lebanon)) v Secretary of State for the Home Department  UKSC 10. The Supreme Court  agreed finding that that financial independence in s 117B(3) means an absence of financial dependence upon the state.
Ms Rhuppiah’s appeal was therefore allowed  as the FTT had been wrong to hold that she was not financially independent and were it not for this error her claim might have been upheld following the flexibility in NIAA 2002, s 117A(2)(a) notwithstanding that her private life was precarious pursuant to NIAA 2002, s 117B(5). However, the Supreme Court did not remit her claim for further consideration as subsequent to the Court of Appeal decision Ms Rhuppiah had achieved 20 years residence in the United Kingdom and had been granted leave to remain pursuant to para 276ADE(1)(iii).
Subsisting parental relationship
NIAA 2002, s 117B(6) contains a self-contained provision providing that removal is not in the public interest where a person, who is not liable to deportation, has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable for the child to leave the United Kingdom. In the helpful decision of SR (subsisting parental relationship, s 117B(6))  UKUT 334 (IAC) (5 September 2018) the Upper Tribunal held that if a parent is unable to demonstrate they have been taking an active role in a child's upbringing for the purposes of E-LTRPT.2.4 of the Immigration Rules, they may still be able to demonstrate a genuine and subsisting parental relationship with a qualifying child for the purposes of NIAA 2002, s 117B(6)  and the question of whether it would not be reasonable to expect a child to leave the UK in NIAA 2002, s 117B(6) does not necessarily require a consideration of whether the child will in fact or practice leave the UK (contrary to the SSHD’s policy). Rather, it poses a straightforward question: would it be reasonable ‘to expect’ the child to leave the UK? [50–51]
Article 8 and community benefit
In Thakrar (Cart JR, Art 8, Value to Community)  UKUT 336 (IAC) (19 September 2018) the UT President sought to give guidance on the extent to which the benefit an individual makes to the community is relevant to the balancing exercise under Article 8(2). In this case the value to the community was derived from the Appellant’s son who runs a substantial business in the United Kingdom employing 40 people.
The President also re-emphasises the limits on a Cart JR (a point he emphasised earlier in the year in Shah ('Cart' judicial review: nature and consequences)  UKUT 51 (IAC) (3 January 2018)). In respect of value to the community the President reviews the jurisprudence, in particular UE (Nigeria) and Others v Secretary of State for the Home Department  EWCA Civ 975. At  the President states ‘It must be emphasised that UE is binding authority that, in an appropriate case, the weight to be given to the importance of maintaining immigration control can be diminished by reason of the effect that the removal of the appellant from the United Kingdom would have upon the community.’ However the President found  that ‘[b]efore coming to the conclusion that submissions regarding the positive contribution made to the United Kingdom by an individual fall to be taken into account, as diminishing the importance to be given to immigration controls, a judge must not only be satisfied that the contribution in question directly relates to those controls. He or she must also be satisfied that the contribution is “very significant”.’ And that  one touchstone for determining this is to ask whether the removal of the person concerned would lead to an irreplaceable loss to the community of the United Kingdom or to a significant element of it. This case is likely to limit the cases in which a Judge will consider the benefit to the community as reducing the weight to be given to the public interest.
In December the UT published a new Country Guidance case on Iranian Kurds: HB (Kurds) Iran (illegal exit: failed asylum seeker) CG  UKUT 430 (IAC) (12 December 2018). Helpful and detailed guidance is given in the head note and while Kurds are not at risk per se the Tribunal emphasise that the ‘Iranian authorities demonstrate what could be described as a “hair-trigger” approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. By “hair-trigger” it means that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.’
Permission to appeal decisions
A Presidential panel of the UT has given guidance on the scope of permission to appeal decisions and when a grant of permission is limited in its scope. In Safi & Ors (permission to appeal decisions)  UKUT 388 (IAC) (13 November 2018) UT held that it is essential for a Judge who is granting permission to appeal only on limited grounds to say so, in terms, in the section of the standard form document that contains the decision, as opposed to the reasons for the decision [41–45]. The UT further held that it is likely to be only in very exceptional circumstances that the UT will be persuaded to entertain a submission that a decision which, on its face, grants permission to appeal without express limitation is to be construed as anything other than a grant of permission on all of the grounds accompanying the application for permission, regardless of what might be said in the reasons for decision section of the document . Hopefully this decision will lead to more specificity in permission decisions.
Asylum claims following a negative NRM decision
In a piece of judicial chutzpah UTJ Finch found, in ES (NIAA 2002, s 82, Negative NRM)  UKUT 335 (IAC) (6 September 2018) that following the amendment to NIAA 2002, s 82 effective from 20 October 2014, a previous decision made by the Competent Authority within the National Referral Mechanism (made on the balance of probabilities) is not of primary relevance to the determination of an asylum appeal, despite the decisions of the Court of Appeal in AS (Afghanistan) v SSHD  EWCA Civ 1469 and SSHD v MS (Pakistan)  EWCA Civ 594. These previous decisions had held that a trafficking decision could not be indirectly challenged in an asylum appeal unless it was shown to be irrational or perverse.
UTJ Finch held that the correct approach to determining whether a person claiming to be a victim of trafficking is entitled to asylum is to consider all the evidence in the round as at the date of hearing, applying the lower standard of proof.
Amending judicial review grounds
In Spahiu, R (on the application of) v The Secretary of State for the Home Department  EWCA Civ 2604 (28 November 2018) the Court of Appeal found that McCloskey J’s decision that permission was not required for amendments made after the filing of the statement of facts and grounds in an application for Judicial Review, was wrong. Permission is required for any amendments produced after service of the statement of facts and grounds. McCloskey J had initially said that permission was not required to amend grounds before the initial permission decision but in a subsequent reported judgment had amended this to say that permission was not required to amend prior to the lodgement of the Acknowledgment of Service.
The Court of Appeal found that McCloskey J had also breached natural justice in failing to notify the parties that he was conducting a review in this case and giving the parties an opportunity to make submissions before his judgments particularly as he intended them to be used as general guidance.
Of wider interest in the Judicial Review landscape is what Coulson LJ states at para 2 ‘The hearing of this appeal took place against a backdrop of increasing concern about the need for appropriate procedural rigour in judicial review cases, expressed in a trio of recent authorities, namely: R (Talpada) v SSHD  EWCA Civ 841, from para 55 onwards—Hickey v The Secretary of State for Work and Pensions  EWCA Civ 851 , from para 69 onwards—and Browne v The Parole Board of England & Wales  EWCA Civ 2024. This case is another reminder that, even in proceedings where unnecessary formality is to be avoided, some formality (and the certainty which it brings) is required.’
Health cases and the effect of Paposhvili
At the start of 2018 in AM (Zimbabwe) & Anor v The Secretary of State for the Home Department  EWCA Civ 64 (30 January 2018) (discussed in Immigration cases 2018—January to June review) the Court of Appeal considered the impact of the judgment of the Grand Chamber of the European Court of Human Rights in Paposhvili v Belgium  Imm AR 867 in relation to Article 3 health claims and found that the judgment represented a very modest extension (from deathbed to imminence of intense suffering) to the test set out in N v United Kingdom (2008) 47 EHRR 39. The Court of Appeal also indicated that it would be highly desirable that the Supreme Court consider this issue.
In MM (Malawi) & Anor, R (on the application of) v The Secretary of State for the Home Department  EWCA Civ 1365 (12 June 2018) the Appellants argued that they satisfied the Paposhvili test. The MM case was initially referred back to the UT under CPR 52.20(2)(b) for further facts to be determined in respect of the availability of ARV medication in Malawi in a form in which MM could take. The UT concluded that medication was available and MM would fail under the Paposhvili test. The matter returned to the Court of Appeal in MM (Malawi) & Anor v the Secretary of State for the Home Department  EWCA Civ 2482 (09 November 2018). In both MM and MV the Court of Appeal found that there was no basis upon which the Paposhvili test could be satisfied and refused permission to appeal in MM and dismissed the appeal and refused permission to appeal to the Supreme Court in MV. The Court of Appeal acknowledges at [57–58] that there are arguable legal issues in respect of the construction of Paposhvili in AM (Zimbabwe) but would not give permission to appeal to the Supreme Court given the facts of MV .
In SL (St Lucia) v The Secretary of State for the Home Department  EWCA Civ 1894 (07 August 2018) the Court of Appeal held that Paposhvili had no relevance to Article 8 claims . An absence of medical treatment in the country of return will not in itself engage Article 8. The only relevance to Article 8 of such an absence will be where that is an additional factor in the balance with other factors which themselves engage Article 8 (see (MM (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 279 at ).
In Khan & Ors v Secretary of State for the Home Department  EWCA Civ 1684 (17 July 2018) the parties and the Court of Appeal agreed to a fair and appropriate solution to ETS Judicial Review cases in the light of the decision in Ahsan v Secretary of State for the Home Department  EWCA Civ 2009. The Appellants were permitted to withdraw their Judicial Review claims on the basis that they would put in human rights representations which would then be considered by the SSHD and if refused would give rise to an appeal at which time the ETS allegation could be resolved. If the Appellant was then successful at appeal, on the basis that no fraud was committed, then the SSHD would rescind the earlier refusal under the rules and afford the Appellant a reasonable opportunity of securing further leave to remain. This solution was intended to be followed in analogous claims. While in the particular cases before the Court of Appeal the SSHD agreed not to certify the human rights claims this did not bind him in respect of other cases which would be considered on their facts.
Extended family members and PRR
In Macastena v Secretary of State for the Home Department  EWCA Civ 1558 (05 July 2018) the Court of Appeal held that time spent by an individual in a durable relationship with an EEA national cannot be counted towards the five years residence required to qualify for a Permanent Right of Residence unless the SSHD has (or perhaps ought to have) issued the individual with a residence card as an ‘extended family member’ pursuant to the Regulations.
Some other cases from the second half of 2018 are worth a final mention:
Poor immigration advice and Article 8 was considered by the Tribunal in Mansur (Immigration adviser's failings, Article 8)  UKUT 274 (IAC) (16 July 2018) where in rare cases it could potentially reduce the weight to be given to the public interest.
For anyone challenging an Administrative Review decision Prathipati, R (on the application of) v Secretary of State for the Home Department (discretion-exceptional circumstances)  UKUT 427 (IAC) (26 October 2018) is a helpful decision. Kerr J states at  ‘However, the efficacy of administrative review as an alternative remedy depends on the ability of reviewers to detect and reverse decisions flawed by error at the initial stage. The more narrowly the remedy is circumscribed, the greater the risk that it may, as in this case, fail to do so. Here, the reviewer was presented with a clear and cogent explanation of what had gone wrong but, instead of correcting the errors, compounded them.’
In respect of asylum cases involving religious conversion and credibility generally the Scottish Court of Session (Inner House) decision in TF and MA against the Secretary of State for the Home Department  ScotCS CSIH_58 (30 August 2018) is essential reading. In this case the FTT had found the Appellant’s account of events in Iran as incredible and that this undermined his account of conversion to Christianity in the United Kingdom. Lord Glennie  holds that in order to assess credibility all relevant material must be considered in a holistic manner  and  a Judge should not jump to the conclusion that just because an individual has told lies about some matters then their whole account is undermined. Lord Glennie helpfully considered how evidence from leaders of the church can be considered as expert evidence as expert evidence [52–55]. Lord Glennie also disagrees with the decision in Dorodian (01/TH/01537)  which held that for someone to be accepted as a Christian they had to be vouched for by a church minister finding that it is more important that the evidence be given by someone who has knowledge of the individual whose commitment is in question. The appeals were therefore allowed and remitted to the FTT.
Adam specialises in immigration, asylum and human rights law. He undertakes cases in the First-tier Tribunal, Upper Tribunal, Administrative Court and Court of Appeal.
The 2015 edition of Chambers and Partners observed—‘He is a case law guru who is always very well prepared in front of the Tribunal.’
Adam regularly speaks at conferences and seminars around the country. He provides updates on the latest developments in immigration law and regularly provides case law analysis for LexisNexis Legal News. He is a contributing Editor to Butterworths Immigration Law Service.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
This review has been specially written for LexisPSL Immigration.
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