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Supreme Court gives guidance on the right to private life in immigration removal cases

14 November 2018

David Sellwood

Garden Court’s David Sellwood was junior counsel in the case, led by Hugh Southey QC of Matrix Chambers. They were instructed by Muhunthan Paramesvaran, a partner at Wilson Solicitors LLP.

The Supreme Court handed down judgment today in Rhuppiah (Appellant) v Secretary of State for the Home Department (Respondent) [2018] UKSC 58.  It settled the long-running debate as to how s 117B of the Nationality Immigration and Asylum Act 2002 should be interpreted in order to be compliant with the right to private life, under Article 8 of the European Convention on Human Rights, and s 6(1) of the Human Rights Act 1998.

The appellant, Ms. Rhuppiah, a Tanzanian national came to the UK to study in 1997. She extended her student visa on a number of occasions, up until 2009. Some of the extensions were made out of time by her sponsoring college, resulting in her being unable to qualify for settlement under the Immigration Rules after 10 years continuous lawful residence. She applied to stay based on the private life she established over many years with family and friends. She cared for one of her friends, Ms. Charles, who was seriously unwell. The Home Office refused to grant her leave to remain. Her appeals to the tribunals (First-tier and Upper) were unsuccessful because they felt bound to give ‘little weight’ to her private life, as directed under s 117B(5) of the Nationality Immigration and Asylum Act 2002, on account of her immigration status being ‘precarious’ as a student. No weight was given to her ability to speak English and show financial independence, factors under s 117B(2) and (3) of the same Act. The Court of Appeal upheld those decisions.

Shortly before the Supreme Court heard the case, the Home Office granted Ms. Rhuppiah limited leave to remain, on the basis she now met the requirements under paragraph 276ADE(1)(iii) of the Immigration Rules, having been in the UK for 20 years. The Supreme Court went on to determine the appeal, due to the public interest in giving guidance on the correct interpretation of the 2002 Act.

The Supreme Court allowed the appeal; the First-tier Tribunal fell into error by construing financial independence under s 117B(3) as precluding third party support, and failing to apply the 2002 Act flexibly. The Court found the ability to speak English (s 117B(2)) and show financial independence may go – amongst other things – to the strength of a private or family life. And whilst precarious immigration status was found to mean any leave short of settlement, the Court underlined the need for flexibility when applying ‘little weight’ to such private life, a requirement that can be overridden in exceptional cases, where there are particularly strong private life features. Such flexibility means the 2002 Act can be read in a way compatible with the right to private life, under Article 8, ECHR.

Case details and the judgment are on the Supreme Court’s website.

David Sellwood is a member of Garden Court Chambers’ immigration team.

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