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What is the Meaning of ‘Precarious’ in Section 117B(5) of the asad-khanNIAA 2002?

Having already heard a string of appeals relating to the meaning of “reasonable” in the Nationality, Immigration and Asylum Act 2002 (as amended), s 117B(6) and the meaning of “unduly harsh” in s 117C(5), recently in Rhuppiah the Supreme Court further considered the meaning of “precarious” in s 117B(5). In addition to this point of statutory construction, the Justices also examined other issues connected to the weight to be given to (i) private life established at a time when a migrant’s immigration status was precarious when conducting the balancing exercise under ECHR, art 8, and (ii) financial independence and proficiency in English when conducting the balancing exercise under art 8. Rhuppiah therefore adds to the gamut of complex issues that have reached the apex court four years after the commencement of the statutory machinery laid down in Pt 5A of the 2002 Act, ss 117A to 117D as inserted by s 19 of the Immigration Act 2014 which entered into force on 28 July 2014 and place art 8 and public interest considerations on a statutory footing. Since statute is silent and Parliament has not defined the meaning of “precarious”, Lords Wilson, Carnwath, Hughes, Lloyd-Jones and Lady Black heard rival arguments about the correct construction of the term within the meaning of the Strasbourg jurisprudence. Rhuppiah is Tanzanian. Between 1997 and 2010 she was variously granted of leave to remain as a student but then fell out of status.

Rhuppiah lives with and cares for her friend, one Ms Charles, who has ulcerative colitis. Her brother, sister-in-law and niece also live in the UK. Upon refusal of her application for ILR in 2012, she appealed to the FTT that leave to remain ought to be granted to her under art 8 outside the rules. In light of Pt 5A of the 2002 Act, the FTT found that little weight should be given to her private life with Ms Charles and her niece because it was established when her immigration status was precarious. The FTT also held that fluency in English and financial independence were neutral factors in the art 8 balancing exercise because Rhuppiah was in any event financially dependent on Ms Charles and her father for lodging and maintenance respectively. The UT also dismissed her appeal. She then appealed further on the basis that the FTT made threefold errors of law. First of all, it misunderstood that her immigration status had been “precarious”. Second, it incorrectly bound itself by the finding of precariousness by attaching “little weight” to her private life whereas it had discretion under statute to attach greater weight in her case. Third, it wrongly treated her proficiency in English and financial independence as neutral rather than positive factors in her favour.

The Court of Appeal

Sir Stephen Richards, Moore-Bick and Sales LJJ dismissed Rhuppiah’s onward appeal. “Precarious” was not, in their Lordships’ view, “a term of art” and was similar but not identical to the guidance imparted in Jeunesse v Netherlands (2015) 60 EHRR 17 whereby family life was rendered precarious from the outset where those “involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious.” Moreover, absent “exceptional circumstances”, art 8 would not be in breach.

In relation to the persistence of family life, Sales LJ (as he then was) interpreted the ECtHR’s view of precariousness independently of the presence of the foreign family member’s lawful status. Anyone with limited leave to enter or remain had clear knowledge that they “would have to leave at the end of a set period of time in the not far distant future.”

Noting the intersection of this point with the present legislation, he held that the concept of precariousness in immigration status in s 117B(5) was distinct from the concept of unlawful presence in s 117B(4). Precariousness in s 117B(5) included persons with limited leave to enter or remain who knew from the outset that their permission to be in the UK could be described as precarious. Construing the two concepts to mean the same thing would make s 117B(5) redundant.

The court rejected the submission that by virtue of allowed extensions a person on a route to settlement cannot be classified as having a precarious immigration status. Sales LJ preferred the point that, short of anything less than settlement, any temporal limit on the leave granted to enter or remain qualifies as a precarious immigration status for the purposes of s 117B(5). Connecting the precariousness of immigration status to the impact it has on the protection it affords to private life in the art 8 proportionality balancing exercise, he held that:

  1. … The more that an immigrant should be taken to have understood that their time in the host country would be comparatively short or would be liable to termination, the more the host state is able to say that a fair balance between the rights of the individual and the general public interest in the firm and fair enforcement of immigration controls should come down in favour of removal when the leave expires.

Upon receiving each grant of leave, Rhuppiah had confirmed that she did not intend to stay beyond her period of study. There was no guarantee that leave would be granted or that the Immigration Rules would remain the same if another application were made in the future. Any hope of an extension was at best speculative and the hope, if any, of possibly eventually acquiring “ILR was still more remote and tenuous.” The FTT had thus been right to find that her immigration status was precarious throughout.

The approach accorded with Deelah (Section 117B – Ambit) [2015] UKUT 00515 (IAC). The public interest in maintaining effective immigration demanded that it should be not be unduly difficult to remove students when their studies ended. An alternative argument meant that leave to enter would be granted less readily to students as removing them would prove difficult. Equally, Rhuppiah was not classifiable as a “settled migrant”. Jeunesse was against her and “indicated that something a good deal more solid and long-lasting” than her flimsy status was required.

This article was originally posted here.

Please see Part Two here.