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Rhuppiah v Secretary of State for the Home Department  UKSC 58: The meaning of the word ‘precarious’ in section 117B(5) Nationality, Immigration and Asylum Act 2002
7 Dec 2018
In the recent Supreme Court case of Rhuppiah v Secretary of State for the Home Department  UKSC 58 (‘Rhuppiah’), the court had to give guidance on the meaning of the ‘precarious’ in section 117B(5) Nationality, Immigration and Asylum Act 2002 (‘2002 Act’). Lord Wilson giving the judgment held that precarious immigration status under section 117B(5) means any leave to enter or remain except for indefinite leave to remain.
The case concerned Ms Rhuppiah who is a Tanzanian national who came to the UK on 16 September 1997 on a student visa. She remained on a student visa (which had been renewed and extended on 12 occasions) until 30 November 2009.
At that point, Ms Rhuppiah had been in the UK for more 10 years and she applied in November 2009 for indefinite leave to remain because of 10 years lawful residence. That was refused because Ms Rhuppiah had gaps in her lawful residence, which had been caused by her college failing to extend her student visa while she had lawful leave causing her to have gaps in her lawful residence.
In another stroke of bad luck, Ms Rhuppiah then applied for indefinite leave to remain because of 14 years residence on 1 July 2012. That application was rejected because Ms Rhuppiah had used the wrong form and paid an insufficient fee. She then reapplied on 24 July 2012. However on 9 July 2012 the route towards indefinite leave to remain for those who had resided in the UK for 14 years had been removed and replaced by a requirement to show 20 years residence. Ms Rhuppiah had not been in the UK for 20 years at that stage and therefore could not succeed under the rules.
The Secretary of State then considered whether she was entitled to leave to remain outside the rules because refusal would breach her right to private life under Article 8. Ms Rhuppiah’s claim to private life relied on her relationship with her friend who was suffering from ulcerative colitis to whom she was providing personal care. Ms Rhuppiah developed her role within this relationship when her stay was lawful. Ms Rhuppiah’s application was also refused on this basis. She appealed this decision.
At the First-tier Tribunal, Judge Blundell dismissed Ms Rhuppiah’s appeal on the basis that under section 117B(5) of the 2002 Act, Ms Rhuppiah’s private life with her friend was developed at a time her immigration status was precarious and he therefore had to place little weight on it. This was appealed to the Supreme Court on the issue of whether Judge Blundell was right to hold that Ms Rhuppiah’s private life had been formed at a time her immigration status was precarious.
Lord Wilson with whom the other judges agreed held that ‘precarious’ immigration status means any form of leave except for indefinite leave to remain. His reasoning for this is as follows:
The word ‘precarious’ had been borrowed from European Court of Human Rights (ECHR) jurisprudence. In the case of Useinov v Netherlands (App No. 61292/00) the Strasbourg Court made a distinction between a case where someone’s stay was tolerated pending the determination of outstanding applications and cases where someone has been given permission to settle. The former was precarious whereas the latter was not. Lord Wilson also relied on the case of Jeunesse v The Netherlands (2015) 60 EHRR 17 where the Strasbourg court set out the nature of non-precarious immigration status as being one which can be withdrawn. Lord Wilson held that this described indefinite leave to remain.
In R (Agyarko) v Secretary of the State for the Home Department  1 WLR 823 Lord Reed defined precarious immigration status as any leave to remain that is temporary. However he did acknowledge that in that case the issue of precarious status did not arise as that person’s stay in the UK was unlawful.
Lord Wilson also affirmed the reasoning of the Upper Tribunal on this issue in AM (s.117B) Malawi  UKUT 260 (IAC). He had regard to the language and purpose of section 117B(5) of the 2002 Act and the fact that the judgment is consistent with Jeunesse and Agyarko. Particular reliance was placed by Lord Wilson on the fact that while precarious status in the ECHR jurisprudence could encompass both unlawful presence and lawful presence for a temporary period, Parliament by providing for unlawful presence in section 117B(4) was creating a clear distinction between the two and there was nothing to indicate that Parliament intended the two provisions to overlap.
Lord Wilson also held that because section 117A(2)(a) of the 2002 Act required that the Tribunal have regard to the factors in section 117B, that the need to give little weight to private life could be supplanted by an exceptional case with particularly strong features. He also reasoned that this justified a bright line approach with the meaning of the word precarious as this demonstrated that there was still some element of flexibility within Part 5A.
Lord Wilson (with the agreement of both parties) also held that financial independence under section 117B(3) meant not financially dependent on the state because there was no reasoned justification for distinguishing third party support from employment so long as third party support could be shown to credible and reliable.
The first thing to note from the judgment is the Supreme Court left undecided the issue of whether indefinite leave to remain obtained by deception or if the person embarked on conduct which would justify its withdrawal would also be precarious. This may be a future avenue for litigation but Lord Wilson does give a strong hint that indefinite leave to remain in those circumstances would also be precarious.
The Supreme Court’s approach in adopting a clear-cut meaning is disappointing and runs counter to the ECHR understanding of private life as set out in the case of Peck v United Kingdom (App. 44647) (2003) 36 EHRR 719. In that case the Strasbourg court provides that Article 8 protects the right to establish and develop relationships with other human beings and the outside world. How can that be possible if little weight is to be attached to any private life formed during the time that a person has temporary leave to remain? This class of cases would also include those granted leave with a clear path to settlement and those who are given leave with no intention of returning to their home country, for example refugees. This would have been better served by the interpretation of precarious status advanced on behalf of Ms Rhuppiah of anyone who has status with a reasonable hope or potential path towards settlement.
Furthermore, Lord Wilson stated that withdrawal of the right to residence spoken of in Jeunesse only applies to indefinite leave to remain. In fact, limited leave to enter and remain can also be withdrawn for conduct reasons under paragraph 323 of the Immigration Rules. Also all the ECHR cases cited where a person’s status was said to be precarious involved those who were unlawfully present or their presence was tolerated while their applications were pending (except for the case of Butt v Norway (App. 47017/09) where a person’s status had been withdrawn for conduct reasons). The only time where precariousness was applied to someone with a lawful right to remain is the case of Arvelo Aponte v The Netherlands (App. 28770/05) where the term was applied to a tourist visa. However someone on a tourist visa clearly does not have an intention to settle.
However the judgment does establish that financial independence under section 117B(3) means not financially dependent on the state. Also there is still some remaining flexibility in the way that section 117B(5) would be applied even if a person’s private life developed at a time their status was precarious if a person can show an exceptional case with particularly strong features. It remains to be seen how that will be applied by the courts in practice.
The saving grace for Ms Rhuppiah was that the appeal before the Supreme Court was academic because by the time appeal had been heard, she had been granted leave to remain because she had been resident in the UK for 20 years. The Supreme Court proceeded to hear the appeal because, while academic, it was an important point of practice that required determination. The Supreme Court therefore set aside the determination of Judge Blundell but did not order reconsideration.Back to News