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The court distinguished EB (Kosovo) [2008] UKHL 41 on the point that without a removal asad-khandecision protracted delay warrants the ascription of greater weight to a migrant’s personal relationships. The rationale converged with the toleration of unlawful presence approach in Jeunesse but in Rhuppiah’s case the question of removal did not arise because she was granted leave as a student and thus the situation was readily distinguishable. Notably, the executive submitted that any grant of limited leave to enter or remain short of settlement or ILR qualifies as “precarious” for the purposes of s 117B(5). Sales LJ declined to rule upon the point, but he doubted that it did. Indeed, in his Lordship’s view, if that had been intended then:

  1. … the drafter of section 117B(5) could have expressed the idea more clearly and precisely in other ways.

He read precarious to “convey a more evaluative concept” than claimed and regarded it as being the opposite of the idea that a person could be considered as a settled migrant for art 8 purposes. The art 8 context potentially supported the position that some migrants with leave to remain, but not ILR, are arguably “very settled” and they enjoy a status which cannot rightly be described as precarious. Either way it was best not to express a full view as Rhuppiah’s case failed in any event.

On the second point, Parliament’s view – such as in s 117B(1), (2), and (3) – was definitive in relation to something being in the public interest. Analysing the interaction of ss 117A(2) and 117B(5), it was quite clear from the words in the former provision that “the court or tribunal must … have regard” to the considerations in s 117B did not mean that judges had discretion whether to follow what Parliament said in those provisions.

Having regard to such considerations did not mandate a particular outcome in the art 8 balancing exercise. Specifically, s 117A(2) stated that regard must be had to the statement in s 117C(6) that, in the absence of very compelling circumstances, the public interest “required” deportation.

“Very compelling circumstances” contemplated by s 117C(3) and (6) provide “a safety valve”, with an appropriately high threshold, for exceptional cases involving foreign criminals where private and family life considerations are so strong that removal would be disproportionate and breach art 8. After applying s 117C, if a court or tribunal concludes that it is a case in which statute says that the public interest requires deportation, then it is not open to the court or tribunal to deny this by holding that the public interest does not require deportation. In MA (Pakistan) [2016] EWCA Civ 705 (discussed here), the court held that where s 117B(6) applies, Parliament had stated that the public interest does not require the person’s removal and the result (i.e. non-removal) has already been predetermined.

The interaction of ss 117A(2)(a) and 117B(5) was a “normative statement” and was “less definitive” than the contents of the other components of ss 117B and 117C. Nevertheless, applying Munjaz [2005] UKHL 58 “cogent reasons … spelled out clearly, logically and convincingly” were needed to depart from statutory guidance. Reading s 117A(2)(a) together with s 117B(5) indicated that while courts should have regard to the consideration that little weight should be given to private life established when immigration status was precarious, this guidance could be disregarded in exceptional cases where private life had a special and compelling character.

Importantly, this interpretation was necessary to prevent s 117B(5) from being applied incompatibly with art 8. It moreover meant that considerable weight should be given to the statement in s 117B(5) as to the approach which should normally be adopted. Sales LJ concluded that the threshold to displace the ordinary rule in s 117B(5) had to be equivalent to the threshold to justify a decision not to follow statutory guidance as in the Munjaz case. No compelling circumstances were evidenced to justify Rhuppiah remaining in the UK.

On the third point, it would have been a negative factor under s 117B(2) if she had been unable to speak English proficiently. Yet this did not mean that it was in the public interest for a person who could speak English to be granted leave to enter or remain. The court held that under the scheme in Pt 5A, a migrant’s English speaking abilities were a neutral factor. The same was true of the financial independence provision in s 117B(3) which, following its natural meaning, referred to someone who was financially independent of others and did not include the gloss “financially independent of the state”.

Comment

The Justices lamented that it had taken four long years for such important points of statutory construction to have reached the apex court. They were obviously concerned that a great number of cases would be affected by the outcome of this appeal. Despite the existing guidance on precariousness in Agyarko [2017] UKSC 11 (discussed here) and Hesham Ali [2016] UKSC 60 (discussed here), another authoritative ruling is badly needed on the precise meaning of “precarious” in s 117 so as to clarify the ongoing confusion in the field.

Supreme Court proceedings have already given us great insight into Rhuppiah’s case. When contrasted with the applicant in Jeunesse, who only had a visit visa for 45 days, she enjoyed lengthy lawful student status and this discrepancy remains unaddressed. She argued that precarious immigration status refers to someone who has never had any leave at all. During the hearing, Lord Wilson was concerned that the outcome in Jeunesse is itself subject to the caveat of “awareness”. However, Rhuppiah’s counsel declined Lord Carnwath’s offer to consider reading awareness into statute. Instead, the focus in the appeal is that people, such as Tier 2 (General) migrants for example, may reside in the UK with a time limited immigration status but they nevertheless have a genuine expectation of acquiring ILR if they satisfy the requirements of the Immigration Rules. Key is the point that Jeunesse distinguishes between a “settled migrant” and “an alien seeking admission” (para 105). So precarious does not mean people with leave.

The Government argued that the mere fact that “precarious” is used in statute does not automatically align its meaning with the Strasbourg jurisprudence. Indeed the stance taken is that, although it is compliant with the ECHR, overall s 117 represents the UK’s own immigration policy as dictated by Parliament and is not necessarily anchored in the Strasbourg jurisprudence. Intrigued by this peculiar claim, Lord Carnwath found it “weird” that Parliament had not defined the term “precarious”. Therefore, it cannot be said that precariousness does not have anything to do with ECHR case law.

In Guliyev v Russia [2018] ECHR 330, the ECtHR said that a precarious status was tied to a migrant not applying for a residence permit at all and that such a person must be classed “as being aware of the precariousness of his residence status well before he commenced his family life”. The approach is clear that the person in question was illegal throughout. By contrast, Rhuppiah had an expectation for leave to be granted as the Immigration Rules provide for her to remain. Thus her situation is different from Nunez v Norway [2011] ECHR 1047 where “serious or repeated violations … with impunity” are clearly cited as criteria that undermine the public’s respect for immigration law.

This article was originally posted here.

Please see Part One here.