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Court of Appeal revisits human rights in immigration appeals


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Following on from the Court of Appeal’s recent human rights “cheatsheet” in GM (Sri Lanka) v Secretary of State for the Home Department, we now have a gem of a sequel that is Lal v Secretary of State for the Home Department [2019] EWCA Civ 1925.

In this case, Ms Lal had been here as a student since 2011 and her leave was due to expire in 2015. Four months prior, she married Mr Wilmhurst, a British citizen, and applied to stay in the UK under Appendix FM of the Immigration Rules.

Refused over doubt about the marriage

The sole reason for refusal was because the Home Office didn’t believe the marriage was genuine and subsisting. We don’t know the reasoning for sure, but I’d be astonished if a major part of the reasoning was not the 40-year age difference between the couple and the timing of the marriage. 

Immigration lawyers (usually) love these types of refusals. They’re pretty straightforward to nail down, for the most part. At the First-tier Tribunal, three of Mr Wilmhurst’s four children gave evidence. They all agreed that Mr Wilmhurst was indeed in a genuine relationship.

Easy enough? If only!

Insurmountable obstacles to family life

Complicating matters, Ms Lal seems to have accepted that that she had to show “insurmountable obstacles to family life continuing outside the UK”. It took a minute for me to get my head around this but it looks like she conceded that the requirements of paragraph EX.1 of Appendix FM had to be met despite this never being raised in the refusal letter.

The Court of Appeal was quick to raise an eyebrow and had “doubt” whether meeting EX.1 was actually an issue but, as courts do they still went on to write a treatise about it.

Indian climate an insurmountable obstacle?

At the First-tier Tribunal, evidence was led that Mr Wilmhurst — who is in his 70s — would not be able to cope with the heat in India and that meant there were insurmountable obstacles. The First-tier Tribunal agreed. The Upper Tribunal did not.

Judge Storey in the Upper Tribunal was pretty annoyed at all this. Whilst he agreed the marriage was genuine, he did not think an inability to cope with heat was insurmountable:

…[the] judge was required to undertake… an objective assessment of whether Mr KW could in fact cope with the heat and whether a difficulty of this kind would pose an insurmountable obstacle… Difficulty [in] coping with heat is not in itself a serious hardship in a country where there is air conditioning and available urban environments built to protect people against the heat.

The Court of Appeal allowed permission on the question of whether the “insurmountable obstacles” test was subjective or objective. Quite a fascinating question if you’re an Appendix FM anorak like me. 

An objective test, but still a test

The court outlined the Supreme Court’s decision in Agyarko v SSHD [2017] UKSC 11. In Agyarko, Lady Hale held that the test was to be applied in a way which was “practical and realistic” and said:

The test cannot… be… subjective… To treat it as such would substantially dilute the intended stringency of the test and give an unfair and perverse advantage to an applicant whose partner is less resolute or committed to their relationship over one whose partner is ready to endure greater hardship to enable them to stay together.

But, the Court of Appeal said, it was not enough to base a conclusion on the Upper Tribunal’s “sweeping statement” about air conditioning. The facts had to be explored thoroughly; where in India could the couple live; what were the average temperatures; could the heat be mitigated by air conditioning; were there any cooler places to live? There was nothing fundamentally wrong with a finding that a person’s sensitivity to heat was an insurmountable obstacle, but evidence was required. 

Relationship formed while immigration status precarious

The other very interesting takeaway from the judgment was a critical look at the Upper Tribunal’s reasoning on the relationship being formed whilst Ms Lal’s immigration status was precarious. 

Section 117B of the Nationality, Immigration and Asylum Act 2002 says that

(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.

The Upper Tribunal judge thought that this “required him to attach little weight to a couple’s relationship when that relationship has been entered into at a time when the applicant’s immigration status is precarious”.

This, the Court of Appeal said, was wrong. Nowhere in section 117B does it say that little weight must be given to a relationship formed with a qualifying partner when a person’s immigration status is precarious (as distinct to unlawful). 

Rather, it is open to courts and tribunals to give such weight to the relationship as is appropriate:

Clearly there are degrees of precariousness in a person’s situation ranging from, at one extreme, someone who is in the country in breach of immigration laws and is liable to removal through to someone who has been present lawfully in the country for some years and is on a pathway to settled status (such as the five or ten year partner route in the UK) but does not yet have indefinite leave to remain. It would be unreasonable to attach equal weight to family relationships established by individuals in such different legal situations and there is no “settled jurisprudence” which requires this. Rather, the Jeunesse case makes clear that a person’s immigration status may greatly affect the weight to be given to their right to respect for family life.

Ultimately, all of this discussion was academic as Ms Lal and Mr Wilmhurst were now parents to a British child; section 117B(6) was therefore engaged. The Upper Tribunal’s decision was set aside and it is up to the Home Office to reconsider matters. 

Once again, there is nothing here which is brand new but it is useful as a reminder that even in cases where there are not children, paragraph EX.1(b) is still very much arguable (even though a lot of the time it feels like the Home Office is mindlessly rejecting these cases!). The key is to take the time to properly explain, particularise and provide supporting evidence of a claim.

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Bilaal Shabbir

Bilaal is an Advocate at the Scottish Bar and practises in both Scotland and Jersey, focusing on public law, commercial dispute resolution and offshore trust litigation. He is a Panel Member on the Football Association’s (FA) National Serious Case Panel.