The Supreme Court had to decide what “precarious” means in section 117B(5) of the Nationality, Immigration and Asylum Act 2002, which says that little weight should be given to a private life established while a person’s immigration status was precarious. It held that the description covers everyone in the United Kingdom, other than a UK citizen, whose leave to remain is not indefinite. Ms Rhuppiah’s appeal was nevertheless allowed because the tribunal had wrongly treated support from her father and a friend as a lack of financial independence, but the Court did not order a fresh hearing once she had already been granted leave to remain.
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Ms Rhuppiah, a Tanzanian national, entered the United Kingdom on 16 September 1997 with three months’ leave as a student. Further student leave was granted on at least twelve occasions, the last expiring on 30 November 2009. She had to show an intention to leave at the end of her studies and accepted that she always expected to have to leave. Six grants followed applications made after earlier leave had expired, usually because her college was late.
In November 2009 she applied for indefinite leave on the basis of ten years’ continuous lawful residence. Her residence had not always been lawful, so the application failed. On 11 October 2010, when the Upper Tribunal refused permission to appeal, she became an unlawful overstayer. The tribunal judge observed that the application would probably have succeeded but for the college’s delay. A further attempt in July 2012, based on fourteen years’ residence whether or not lawful, also failed: the first application was defective, and the relevant Immigration Rule had been deleted before she reapplied. A near miss was irrelevant.
The Home Secretary refused the application. Ms Rhuppiah relied on her private life in the UK, including a longstanding friendship in which she provided care and received support. That arrangement later mattered to the question of financial independence.
On 22 August 2014 the First-tier Tribunal reluctantly dismissed her article 8 appeal. Section 117B(5), in force for less than a month, provides that little weight should be given to a private life established while immigration status was precarious. Judge Blundell treated that direction as effectively requiring dismissal. Further appeals to the Upper Tribunal and the Court of Appeal failed. Sales LJ, with whom Moore-Bick LJ and Sir Stephen Richards agreed, upheld the finding that her status had been precarious.
The removal dispute later became academic. From 16 September 2017 she had lived continuously in the United Kingdom for twenty years. On 9 February 2018 the Home Secretary granted thirty months’ leave under the private-life Rules, with a possible route to indefinite leave after ten years on that basis. The Supreme Court still heard the appeal: the meaning of “precarious” was of general importance, and both sides agreed that a separate error had to be corrected.
What “precarious” means
Ms Rhuppiah accepted that lawful presence can be precarious. Otherwise section 117B(5) would add nothing to section 117B(4), which already gives little weight to a private life, or a relationship with a qualifying partner, established during unlawful presence. She argued that long periods of student leave placed her on a potential path to settlement, particularly because she had come close to indefinite leave in 2010 and 2012. Sales LJ rejected that argument but doubted the Home Secretary’s broader submission. He thought “precarious” required an evaluation of a person’s overall circumstances, and that some people with limited leave might be very settled.
Lord Wilson, with whom Lord Carnwath, Lord Hughes, Lady Black and Lord Lloyd-Jones agreed, preferred a clear line. Parliament had taken the word from European Court of Human Rights decisions, but had used it differently. Those decisions had mainly asked whether family life was created when those concerned knew that its continuation in the host country would be precarious. Section 117B(5) asks only whether the applicant’s own immigration status was precarious, and only in relation to private life.
The Court endorsed the Upper Tribunal’s approach in AM (S117B) Malawi. Status is precarious if continued presence depends on a further grant of leave. That includes limited or discretionary leave for a defined period, even where the person legitimately expects that leave may eventually be extended indefinitely. Everyone who is not a UK citizen, is present in the United Kingdom and has leave other than indefinite leave therefore has a precarious status under section 117B(5).
Judge Blundell had consequently been right on this issue. The relevant private life, including care for Ms Charles, was established long before 2010, while Ms Rhuppiah’s presence was predominantly lawful and her leave was time-limited student leave. Her status remained precarious after February 2018 because the new grant was for thirty months. Unlawful presence is not itself “precarious” under subsection (5): subsections (4) and (5) are distinct, and subsection (4) already covers unlawful presence. The facts did not allow the Court to decide a further suggestion in AM, that even indefinite leave might be precarious if obtained by deception or if criminal conduct would justify its withdrawal.
Little weight is not automatic
Part 5A is intended to structure article 8 decisions without producing a result incompatible with the Convention, so some flexibility was required. Section 117A(2)(a) requires a court or tribunal to have regard to the section 117B considerations; it does not impose a strait-jacket. “Little weight” itself contains a small degree of flexibility, and section 117A(2)(a) supplies the limited flexibility needed. Lord Wilson adopted Sales LJ’s description: the general guidance may be overridden in an exceptional case by particularly strong features of the private life. Because leave had already been granted, the Court did not decide whether Judge Blundell had understood that provision or whether Ms Rhuppiah’s private life had those features.
Financial independence
Section 117B(3) says that it is in the public interest, and in the interests of the United Kingdom’s economic well-being, that people seeking to remain are financially independent, because they are not a burden on taxpayers and are better able to integrate. Judge Blundell held that Ms Rhuppiah was not financially independent because she depended on her father and Ms Charles. The Court of Appeal agreed.
Before the Supreme Court, the Home Secretary accepted Ms Rhuppiah’s construction, provided third-party support is credible and reliable. Lord Wilson agreed. The subsection is concerned with dependence on the state. Support from others may cease, but so may employment. The explanation that such people “are not a burden on taxpayers” confirmed the meaning. The tribunal had therefore been wrong to treat section 117B(3) as weighing against her.
Her further argument failed. Sections 117B(2) and (3) do not make fluency in English or financial independence reasons why it is in the public interest that someone should remain. They state that it is in the public interest that people who seek to remain can speak English and are financially independent. If they cannot, that may help justify interference with private or family life. Those facts may still be used to describe the strength of a private life, but they do not create a public interest in favour of the claim.
Why the order was set aside
The financial-independence error might have mattered. Section 117B(5) still required little weight to be given to the private life, but only subject to the limited flexibility in section 117A(2)(a). Without the mistaken negative factor, that flexibility might properly have led Judge Blundell, who had obvious sympathy for the claim, to allow it. The Court therefore set his order aside. It did not send the original appeal back, because Ms Rhuppiah had already received the leave she could have hoped to obtain.
Verdict: The Court unanimously allowed the appeal and set aside the tribunal’s order. It held that Ms Rhuppiah’s time-limited leave was precarious, but that support from a friend did not make her financially dependent for this purpose. She had already received leave to remain, so the Court did not remit the case or decide whether removal would have breached article 8.
Source: Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58
