Immigration: Article 8 the right to remain in the UK as a partner; best interests of the children: Proportionality, and insurmountable obstacles to return: important observations
Posted on 21st October 2019 at 12:15
By Vitalis Madanhi
Solicitor at CB Solicitors
In a recent decision by the court of appeal in the case of GM (Sri Lanka) (2019) EWCA Civ 1630 the court clarified major issues which have been affecting many immigrants who are keen to regularise their stay in the UK. This is a case where a lady from Sri Lanka came to the UK to study with a student visa duly issued. Before the visa expired the lady got married to a person who had leave to remain in the UK. In the process the family had two children. By the time the visa expired the family was quite established. The Home Office then decided to remove the lady from the UK irrespective of the established family. The Home office argued that the lady could be removed to Sri Lanka and the husband being originally from Sri Lanka could accompany her to Sri Lanka together with the two children who were born in the UK as they were still young, well below the age of seven years and were deemed to easily adapt to life in Sri Lanka.
The decision did not recognise the fact that the husband had lawful stay in the UK. At the time of the initial decision by the Home Office the husband was still on a limited discretionary leave to remain in the UK. Despite the fact that the appellant, the lady having claimed asylum in the UK and pleaded her human rights to be allowed to remain in the UK, the Home Office and the Tribunal had simply sanctioned her removal from the UK. The court had to rule and considered the legal principles as detailed below.
The Court of appeal had to consider the human rights issues relating to the family members and in the process made important observations which tend to affect many people in this category. The court clarified such matters as the application of the applicable proportionality test and the relative weight to be attached to various factors in the balancing and weighing exercise; the relationship between the IR, the NIAA 2002 and Article 8; the meaning of "little weight" in sections 117B(4) and (5); the extent to which the "little weight" test applies to family rights; the relevance of a person's immigration status in a family life assessment; and the relevance of "insurmountable obstacles" to return in the family life context.
The court had to consider that, the husband was now a "qualifying partner" within the meaning of Section 117D (1) NIAA 2002 and accordingly fell to be treated as "settled" in the United Kingdom. The best interests of the two children who had also been granted ILR in line with the status of their father had to be considered. It was important to address whether it was in the children's best interest to leave the United Kingdom to reside in Sri Lanka for the sole purpose of continuing the established close family life with their mother taking due account of their circumstances including their ages, the impact upon their ongoing education and, the fact that both children were born in the United Kingdom, had resided in the United Kingdom continuously since birth and had never resided in Sri Lanka. By compelling the husband and children to leave the United Kingdom, they risked losing their ILR status pursuant to paragraph 20 of the IR and Article 13 of the Immigration (Leave to Enter and Remain) Order 2000 which provided that a person absent from the United Kingdom for more than 2 consecutive years automatically loses ILR status.
The Appellant focused upon six issues: (i) The relevance of the nature of the rights that would have to be relinquished if a person (such as the husband and children of the Appellant) had to leave the United Kingdom in order to retain a family life abroad; (ii) the application of section 117B(4) and (5) and the application of the "little weight" provisions therein as applied to family life created when an immigration status was precarious; (iii) the relevance of awareness from the outset that the "persistence" of family life would be precarious; (iv) the paramountcy of the interests of the children; (v) the relevance of the existence of in/surmountable obstacles to return; and (vi), the value of comparator cases.
The court observed that, the IR and section 117B must be construed to ensure consistency with Article 8. This accords with ordinary principles of legality whereby Parliament is assumed to intend to make legislation which is lawful (see for example R v SSHD ex p. Simms 2 AC 115 at page 131; Were it otherwise then domestic legislation could become inconsistent with the HRA 1998 and the ECHR and be at risk of a declaration of incompatibility. By this observation the court wanted to remind the Home Office not to construe Immigration rules in such a manner which would render legislation irrelevant.
The list of relevant factors to be considered in a proportionality assessment is "not closed". There is in principle no limit to the factors which might, in a given case, be relevant to an evaluation under Article 8, which is a fact sensitive exercise. This obvious point was recognized by the Supreme Court in Ali (ibid) at paragraphs [115ff]] and by the Court of Appeal in TZ (Pakistan) and PG (India) v SSHD  EWCA Civ 1109 ("TZ") at paragraph . The factors to be considered should include the personal conduct of an applicant or family member in relation to immigration control e.g. breach of immigration rules or criminal law, or public order considerations; the extent of social and economic ties to the UK; and the existence of prolonged delay in removing the applicant during which time the individual develops strong family and social ties: See generally Ali paragraph  citing with approval Jeunesse v The Netherlands (2014) 60 EHRR 17 ("Jeunesse").
It was pointed out that if the husband and children returned to Sri Lanka then under the present law, they stood to lose their present DLR and any advantages, such as legacy rights and a pathway to settlement. In KO (ibid) at paragraph  Lord Reed observed that a relevant question was always "where the parents … are expected to be" since it was generally reasonable for children to reside with them. The Court had to consider whether the parents had a right to remain.
The court observed that a person who could be said to be on a pathway to settled status might, in relative terms, be in a stronger position than one with DLR who was not on such a pathway and this relative position needs at least to be taken into account in the proportionality, fair balance, assessment. It might be correct that in both cases the rights may still be said to be "precarious" but nonetheless the nature of the rights actually held was a relevant consideration to be taken into account. Yet here they were not.
The Judge did refer to sections 117B and it is of some relevance that the UT construed the judgment as applying section 117B (4) and (5). The starting point is that neither section has any material relevance in the context of a family life case such as the present. In Rhuppiah the Court clarified that the "little weight" provision in section 117B (4) applied only to private life, or a relationship formed with a qualifying partner, established when the person was in the United Kingdom unlawfully. It did not therefore apply when family life was created during a precarious residence i.e. a temporary, non-settled, but lawful, residence, which is the case in this appeal.
The normal precariousness test is applied to an applicant's own, personal, private life interest (as set out in section 117B (5)). This is because the awareness referred to by the Supreme Court concerns the position of all the relevant parties, and in a family life case would include the partner of an Appellant or applicant and any children capable of being relevant on the facts to such an awareness. This must be right and flows directly both from the logic of collective family life cases as distinct from individualized, private life cases, and is a distinction drawn in the case law. Indeed, in Rhuppiah, at paragraph , Lord Wilson referred to the "explicit need for awareness" when distinguishing between a precariousness analysis of an individual applicant (under section117B (5)) and the analysis of a family. The same point was made in Ali paragraphs  and  citing the judgment of the Strasbourg Court in Jeunesse (ibid) with approval.
In the present case it seems at least arguable that as of the date when the Appellant married her husband, he was by then on a recognized pathway to settled status which could, realistically, in due course have affected his and her knowledge of the ability of their family life in the United Kingdom to persist. We make no definitive findings on this save to say that the omission of any recognition or analysis of the issue was potentially material.
Where children are involved their best interests are said to be "paramount. Standing alone the rights of children cannot be decisive; nonetheless they must be "afforded significant weight": Ali paragraph . See also section 55 of the Borders, Citizenship and Immigration Act 2009. In KO (ibid) Lord Reed, summarising the position, pointed out: (i) that a child cannot be blamed for the conduct of the parents even where that is characterized by criminality or misconduct (which is not the case in this appeal) (ii) the question is "what is reasonable" for the child (paragraph ); (iii) it is "inevitably relevant" to determine where the parents "are expected to be" and the record of the parents might thereby become relevant if it leads to their ceasing to have a right to remain in the United Kingdom and having to leave (paragraph  citing with approval the judgment SA (Bangladesh) v SSHD 2017 (ibid) at paragraph ). Lord Reed also cited, to similar effect, Lewison LJ in EV Philippines (ibid) at paragraphs  where the Court of Appeal made clear that if one parent has no right to remain, but the other parent does, then that is the "… background against which the assessment" must be conducted.
The Judge in the Tribunal did not analyse the position of the children from the correct perspective. She proceeded upon the basis that the husband would make a choice that he said that he would not take. She ignored the implications of the fact that she did not reject his evidence about remaining in the United Kingdom. She overlooked the risk that the family could be ruptured as a result of her decision (which is to be avoided: Once again, we cannot conclude that this failure was immaterial.
The Appellant argued that the Judge erred in her assessment of the position of the children. She wrapped this up in her conclusion that the father was able to move to Sri Lanka and therefore he should, and any refusal to do so was his "choice". That being so she held that the children would not suffer because the family could remain together in Sri Lanka. But she failed to analyse the case upon the basis of the unchallenged evidence, which was that the husband had strong reasons, including his legacy DLR status, which meant that he would not leave the United Kingdom. Were the father and children to leave for Sri Lanka they risked losing their valuable DLR status with its possible pathway to settled status.
Accordingly, she erred when she proceeded upon the basis that the children would not suffer because of this choice. She could not lawfully proceed upon the assumption that the father would choose to leave the United Kingdom. The position of the children had to be analyzed in the context of an acceptance that the father would stay and, this being so, the family would be ruptured and fractured and the children would suffer either from separation from their mother (one child was only two months old at the time) or from their father when it was common ground that he was the bread winner and the children benefited from having two parents.
The Judge of the First Tribunal did not analyze the position of the children from the correct perspective. She proceeded upon the basis that the husband would make a choice that he said that he would not take. She ignored the implications of the fact that she did not reject his evidence about remaining in the United Kingdom. She overlooked the risk that the family could be ruptured as a result of her decision (which is to be avoided: Once again, we cannot conclude that this failure was immaterial.
The insurmountable obstacles assessment amounts to a free-standing prima facie test. It is prima facie because to ensure that the IR are compatible with Article 8, even where residence is in breach of the rules, leave can be granted in exceptional circumstances where removal would result in "unjustifiably harsh consequences" or where the family would face "very serious hardship" or "very significant difficulties in continuing family life outside the UK": Agyarko (ibid) paragraphs  and .
A court will consider whether the applicant or his or her partner would face "very significant difficulties" in continuing family life together outside the UK which could not be overcome or would entail "very serious hardship". Equally, if the refusal of an application would result in "unjustifiably harsh" consequences, such that refusal would not be proportionate, then leave will be granted outside the IR on the basis that there are "exceptional circumstances". In TZ (ibid) the Court of Appeal (in relation to the development of a family life during a period when the parent's rights were precarious and in relation to an assessment outside the IR) described a test of reasonableness. The Court stated that the question was whether it could: "… reasonably be expected that s/he will follow the removed person to keep their relationship intact".
An important point was made in Ali by Lord Reed who stated that national decisions makers should "… advert to and address evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give sufficient protection and sufficient weight to the best interests of children". Practicality and feasibility are not the sole lodestars since the Court also identified "proportionality" which is separate and broader, and this involves assessing the issue from the perspective of a "fair balance".
Proportionality must also be considered which necessitates a careful analysis of the fair balance that exists between the State's interest in immigration control and the individual's interests. The point is made for the Appellant that if her husband and children were to follow her then they would lose their leave to remain and with it the chance (which of course did materialize) of settled status in the UK. There is no analysis of whether in such circumstances this was proportionate or reasonable for the husband or for the children.
On this analysis the family is placed in the most awful dilemma. If the father and children are to reap the benefits of their newly granted settled status, then they would have to do so without the wife and mother. Indeed, as matters stand the Respondent has rejected an application for the Appellant's position to be re-considered.
On the other hand, if the family is to be preserved as a unit then the father and the two children must leave the United Kingdom and thereby place in jeopardy their ILR and the settled status of three of the four family members. Further, the children are now much older than they were at the time of the Decision and FTT judgment. They are (at the time of this judgment) five and approaching seven years old respectively and will undoubtedly have developed tangible and strong social links within the United Kingdom, which was not the case when the matter was before the FTT. No one questions that the best interests of the children lie in remaining with both parents.
For all the above reasons: the appeal was allowed; the judgments of the UT and FTT were set aside; The Secretary of State was directed pursuant to Section 87 of the Nationality, Immigration and Asylum Act 2002 to reconsider the Appellant's human rights claim that it would be a breach of Article 8 ECHR for her to be removed from the UK.
Viltalis Madanhi is a senior solicitor at CB Solicitors.He can be contacted on firstname.lastname@example.org.
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