In GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630, handed down on Friday, the Court of Appeal provides a helpful summary of where we currently stand with private and family life cases under Article 8 of the European Convention on Human Rights.

General observations on Article 8

As many readers will already know, most private and family life cases turn on proportionality. This is a balancing exercise. Does the person’s right to respect for private and family life outweigh the public interest in maintaining firm and effective immigration control?

The court outlines six “general observations” about the proportionality test, firing a few warning shots at both the Home Office and at those who seek to rely on private and family life to stay in the UK:

1. The Immigration Rules and section 117B must be construed to ensure consistency with Article 8.
2. The Home Office is entitled to outline the weight to be applied to various factors in the proportionality assessment. Courts and tribunals must accord “considerable weight” to the policy of the Home Office, including the policy weightings set out in section 117B. However, to ensure consistency with the Human Rights Act 1998, this section must have injected into it a limited degree of flexibility so that its application always leads to an end result consistent with Article 8.
3. The test for an assessment outside the Immigration Rules is whether a “fair balance” is struck between competing public and private interests. This is a proportionality test. References in the Rules and Home Office policy to a case having to be “exceptional” before leave to remain can be granted must be construed as not imposing any incremental requirement over and above that arising out of the application of an Article 8 proportionality test, for instance that there be some highly unusual or unique factor or feature.
4. The proportionality test is to be applied on the circumstances of the individual case. The facts must be evaluated in a “real world” sense.
5. There is a requirement for proper evidence. Mere assertion by an applicant as to his/her personal circumstances will not necessarily be accepted as adequate if unsupported by documentary evidence.
6. 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.

Something for everyone, then. The Home Office is reminded that the correct test is proportionality, not exceptionality. The correct question is not whether there are any exceptional circumstances, but whether a fair balance has been struck between the competing interests. Officials are also reminded the policy outlined in section 117B is not necessarily sacrosanct.

Migrants and their representatives are reminded that cases will always be fact specific. Proper evidence of why the Home Office decision disproportionately interferes with the person’s right to private and family life is therefore needed. Mere assertion will not get you very far. Expert reports — from country of origin experts about the conditions likely to be faced on return, or from a psychologist or psychiatrist about the impact of return on any children or vulnerable adults involved — are invaluable. They help to discharge the obligation to provide “proper evidence”. They are, however, expensive so cannot be obtained by everyone.

Q&A with the CoA

The Court of Appeal also asks, and answers, a number of questions which frequently arises in these types of cases.

What is the relevance of the nature of the rights that would have to be relinquished if a family member had to leave the UK in order to continue family life abroad?

Answer: very relevant. It can “greatly affect the weight” to be given to the person’s private and family life. 

…the law is not concerned with form but with the practical substance of the actual immigration status of the person in issue… 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.

Paragraph 33

The husband of the appellant in this case was on an established route to settlement. Leaving the UK would have meant he would be unable to become settled. 

Do the “little weight” provisions in sections 117B(4) and (5) apply to family life cases created when immigration status was precarious?

No.

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 ie. a temporary, non-settled, but lawful, residence, which is the case in this appeal.

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The Supreme Court also confirmed in Rhuppiah [2018] UKSC 58 that section 117B(5) applies only to private life, not family life. Family life is not referred to at all in this subsection.

What is the relevance of awareness from the outset that family life may not be able to continue in the UK?

It is an “important consideration”.

Although this is not spelled out by the court, the inference is that where the couple have a reasonable expectation of being able to stay together in the UK, the obliteration of this expectation may render removal disproportionate.

Conversely, if the couple always knew, or should have known, that they might be unable to live together permanently in the UK, then requiring them to live elsewhere may be proportionate.  

What is the correct approach to the best interests of the children?

The best interests of any children are a “paramount” consideration. Standing alone, the rights of children cannot be decisive; nonetheless they must be “afforded significant weight”. Children cannot be blamed for the conduct of the parents even where that is characterised by criminality or misconduct. 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 them ceasing to have a right to remain in the UK and having to leave. 

The position of the children had to be analysed 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.  

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It is unlawful to proceed on the assumption that a parent entitled to reside in the UK will choose to leave. 

What is the relevance of the existence of insurmountable obstacles to return?

Here the court says:

In relation to the position under Article 8 outside the [Immigration Rules], under ECHR case law the extent to which obstacles to return can be overcome is simply a “relevant factor” in relation to “non-settled” applicants; it is not the test.

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It is not about ability or capability to move. The test is not whether the partner could leave the UK and continue their family life with their foreign spouse elsewhere. The test is proportionality: 

[E]ven if it is practicable and feasible for a person to return that is not the end of the story – 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… a person might be able to return to a foreign country, yet it might still be unreasonable or disproportionate to compel return.

Paragraph 51

In this case the Home Office had already granted the husband and children visas and they were on a pathway to settlement. There was “no discernible, sensible, objection to the husband and children being in the United Kingdom”. This was relevant to the assessment of whether compelling them to move to Sri Lanka to preserve their family life with their wife and mother was proportionate.

What is the value of comparator cases? 

Article 8 assessments are fact intensive so recourse to comparators may be of limited utility.

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Comparing your claim to a previously decided case is rarely useful. Each claim is factually different.

The “deeply disjointed” Home Office

The decision concludes with the court criticising the Home Office’s failure to review the appellant’s case when her husband and children were granted indefinite leave to remain in the UK.  

There is a deeply disjointed feel to this case. We are at a loss to understand why, in the light of the grant of ILR to the husband and children, the Respondent has not pragmatically agreed to revisit the position of the Appellant.

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Although this happened after the decision of the tribunal that was being appealed, the Court of Appeal were able to take it into account. The appeal was allowed and the Home Office directed to reconsider the claim.

There is nothing earth-shattering in this case. All of the above questions have been answered before. However, given that there have been four highly significant Supreme Court cases addressing the correct approach to these types of cases in the space of just three years, it is helpful to have a Court of Appeal judgment drawing the various strands together and summarising the general principles.