ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SALES
SIR STEPHEN RICHARDS
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Andrew Byass (instructed by Government Legal Department) for the Respondent
Hearing date: 21st July 2016
Crown Copyright ©
Lord Justice Sales:
ARTICLE 8 OF THE ECHR: PUBLIC INTEREST CONSIDERATIONS
117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person's right to respect for private and family life under Article 8, and(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
117B Article 8: public interest considerations applicable in all cases
(1)The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and(b) it would not be reasonable to expect the child to leave the United Kingdom.
117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C's life,(b) C is socially and culturally integrated in the United Kingdom, and(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
117D Interpretation of this Part
(1) In this Part—
"Article 8" means Article 8 of the European Convention on Human Rights;
"qualifying child" means a person who is under the age of 18 and who—
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more;
"qualifying partner" means a partner who—
(a) is a British citizen, or
(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 — see section 33(2A) of that Act).
The factual background
The FTT's decision
"… I cannot see how the appellant's status since her arrival to the UK can be described as anything other than precarious. The only type of leave which the appellant has ever had was as a student. That fact led [counsel for the Secretary of State] to ask the appellant, during cross-examination, whether she expected that she would have to leave the UK at some point. She replied in the affirmative. The fact is that the appellant has only ever held a type of leave … which required her to demonstrate an intention to return. Her immigration status was precarious throughout; she had no expectation that she would be allowed to remain indefinitely, and leave to remain as a student would not have been granted if she had suggested otherwise. I find that s. 117B(5) requires me to attach little weight to the private life established by the appellant."
"… I accept that Ms Charles will be particularly badly affected by the appellant's removal; that the appellant's family members will be deeply upset; and that the local community will lose a woman who has been committed to charitable activity for many years. I am required by statute to attach little weight to all of those relationships, however. I am also required to weigh against the appellant her financial dependency on Ms Charles and her father. I am also required to weigh against her the fact that she cannot meet the new Immigration Rules introduced by HC194. As a result of the legislative changes, and the current state of the authorities regarding the new Rules, I consider that I am bound to conclude that the harsh consequences which will flow from the appellant's removal are justified and proportionate to the legitimate aim pursued by the appellant."
i) The FTT erred in law in holding that the appellant's immigration status was "precarious" from the outset of her presence in the UK for the purposes of section 117B(5);
ii) On its proper construction, section 117A(2) read with section 117B(5) means that a court or tribunal has a discretion in an appropriate case to attach substantially more than "little weight" to private life established in the UK at a time when the person's immigration status was precarious. In this case, the FTT erred by treating itself as obliged by the statute to give only little weight to the appellant's private life in the UK, even if her immigration status between 1997 and 2010 was "precarious" in the requisite sense; and
iii) The FTT erred in its interpretation of section 117B(2) (proficiency in English) and section 117B(3) (financial independence). It should have found that the proper meaning of "financially independent" in section 117B(3) is that the person has a sustainable source of income or means of living which does not involve dependency on the state, and that the appellant was financially independent in this sense. The FTT should have treated both that factor and the appellant's proficiency in English as positive factors in her favour under section 117B(2) and (3), rather than just being neutral.
Ground (i): the meaning of "the person's immigration status is precarious" in section 117B(5)
"Another important consideration is whether family life was created at a time when the persons 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. It is the Court's well-established case-law that, where this is the case, it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of art. 8."
Ground (ii): the interaction of section 117A(2) and section 117B(5)
Ground (iii): section 117B(2) (proficiency in English) and section 117B(3) (financial independence)
Sir Stephen Richards:
Lord Justice Moore-Bick: