Further Guidance from the Courts on Article 8 post Rhuppiah

Wednesday 6 February 2019

David Jones of the Garden Court Chambers Immigration Team has been instructed by Sutovic and Hartigan Solicitors to prepare the grounds of appeal to the Supreme Court.

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The Court of Appeal handed down judgment in SA (Afghanistan) [2019] EWCA Civ 53 on 5 February 2019. The ruling is significant for two reasons.

First, whilst the Court appeared to acknowledge that an individual’s private life was developed initially whilst a child was a matter capable of impacting on the assessment of whether the little weight provisions in section 117B Nationality Immigration and Asylum Act 2002 should be applied with full force, it declined to rule authoritatively on the issue appearing to suggest instead that the exceptional cases envisaged by the Supreme Court in Rhuppiah were confined to those where there were particularly strong features of private life:

31. It is also clear from the quotation from Lord Wilson’s judgment on the second issue that there will be cases, notwithstanding the limited weight that can be attached to the private life of those whose immigration status is precarious, which have ‘particularly strong features of the private life’ that will outweigh ‘the normative guidance’ in s.117A(2)(a) and s.117B(5). It is perhaps unhelpful to talk in terms of a children being ‘blamed’ for a developed private life in this country during formative years, while their immigration status is precarious. There is no question of ‘blame’. However, once an assessment is made that article 8 is engaged, and a further assessment must be made as to whether removal will interfere with the private life, the weight attached to the private life is to be weighed in accordance with the statutory criteria.

Second, and more helpfully, the Court agreed that rejection of a protection need under Article 15C of the Qualifications Directive, with regard to the establishment of conditions of internal armed conflict, would not be determinative of whether it could be said country conditions were capable amounting to a very significant obstacle to integration for the purposes of an assessment under paragraph 276ADE(1)(vi). It considered though that the position on Article 15C may be taken as a starting point.

39. I agree that they are separate issues and must be addressed separately. Nevertheless, a decision on Article 15(c) may be relevant. As Lord Bannatyne recognised: Thus, in considering whether there are very significant obstacles to integration in the circumstances of this case, it is proper to take as a starting point the position as regards Article 15(c).


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