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On appeal from: [2016] EWCA Civ 803

This appeal considered the meaning of precarious in the Nationality Immigration and Asylum Act 2002, s 117B(5). It also considered the weight to be given to private life established at a time when the appellant’s immigration status was precarious and the weight to be given to financial independence and proficiency in English when conducting the balancing exercise under ECHR, art 8.

The Supreme Court unanimously allowed the appeal. The Court held that the application of the concept of precariousness did not depend on such a subtle evaluation of the overall circumstances as suggested by the Court of Appeal.

The Supreme Court addressed ECtHR decisions on the concept of precariousness in the context of ECHR, art 8, suggesting that family life will be precarious if created when an applicant was here unlawfully or had only a temporary right to remain in the UK.

s 117B imports the concept of precariousness from ECtHR case law. But the section only applies to an applicant’s private life. In a case not cited to the Court of Appeal, the Upper Tribunal previously held that a person’s immigration status was precarious for the purpose of s 117B(5) if his continued presence in the UK would be dependent upon a further grant of leave. The Supreme Court approved this decision. Everyone who, not being a UK citizen, is present in the UK and who has leave to reside in the UK other than to do so indefinitely, has a precarious immigration status for the purposes of s 117B(5).

The FTT erred in concluding that Ms Rhuppiah was not financially independent within the meaning of s 117B(3). The Supreme Court held that “financially independent” in s 117B(3) means “not financially dependent upon the state”. It therefore allowed Ms Rhuppiah’s appeal.

For judgment, please download: [2018] UKSC 58
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (10 Jul 2018 morning session) (10 Jul 2018 afternoon session)