Ansuy Devi Jamawantee Deelah & Ors v Secretary of State for the Home Department

The four Appellants are nationals of Mauritius and, together, constitute a family unit formed by mother and father (the first two Appellants) and their daughter and son, aged 21 and 14 years respectively. The first Appellant was lawfully present in the United Kingdom from July 2005, initially as a visitor and subsequently , upon conversion, as a student. The other three Appellants entered the United Kingdom lawfully and acquired depend a nt status. Successive grants of leave to remain ensued. These were followed by several unsuccessful attempts by the first Appellant to acquire further leave to remain as a student. This phase culminated in her application for further leave to remain outside the Immigration Rules, dated 05 April 2013. This elicited, initially, an in-country unappe a lable refusal decision, followed by a decision to issue removal directions against all Appellants, dated 28 January 2014.

The grounds of the Appellants’ appeal to the First-tier Tribunal (the “ FtT ”) invoked Article 8 ECHR and section 55 of the Borders, Citizenship and Immigration Act 2009. In dismissing their appeals, the Judge noted in particular that the family unit would be undisturbed by the Secretary of State’s decisions. He also highlighted ability to reintegrate into their country of origin; the utility of educational achievements acquired in the United Kingdom; enduring significant family ties with Mauritius; and the ability of the third and fourth Appellants to learn a new language if necessary. The Judge further found certain aspects of the first and second Appellants’ evidence unworthy of belief. In making his conclusions he referred explicitly to section 117B(6) and section 117D(1)(a) and (b) of the Nationality, Immigration and Asylum Act 2002.

Following an initial refusal, permission to appeal was granted by a Judge of the Upper Tribunal. Both the grounds of appeal and the grant of permission focus on the new provisions of section 117 A and 1 1 7B of the Nationality, Immigration and Asylum Act 2002 (the “ 2002 Act ”), inserted by the Immigration Act 2014 and operative from 2 8 July 2014. As the appeal progressed, permission to amend the grounds was granted. As a result, the Appellants ’ case now telescope s to the following four submissions:

Sections 117A and 117B of the 2002 Act apply only to an appeal under section 84(1)(c) of the same statute. As a result, they have no application to this appeal which is brought under section 84(1)(a) and (g).

Insofar as section 117B(4) and (5) of the 2002 Act purport to instruct Judges to attribute “ little weight ” to the considerations specified therein it cannot be thus construed as to do so would be to give effect to a constitutionally impermissible encroachment on the independent adjudicative function of the judiciary.

A private life “ established ”, in the wording and in the context of section 117B(4) and (5) of the 2002 Act , is not to be construed as confined to the initiation, or creation, of the private life in question but extends to its continuation or development.

The adjective “ precarious ” in section 117B(5) of the 2002 Act contemplates, and is restricted to, temporary admission to the United Kingdom or a grant of leave to remain in a category which per mits no expectation of a further grant.

All statutory references which follow are to the legislation in force at the material time. For convenience, the provisions currently in force are reproduced in the Appendix hereto. The right of appeal against immigration decisions is governed by section 82 of the 2002 Act, t he material provisions whereof we re , at the material time, these :

The trigger for the application of the various provisions assembled in Part 5A of the 2002 Act is a decision “ made under the Immigration Acts ”. These latter words are defined in section 61 (2) of the UK Borders Act 2007:

I s the application of sections 117A and 11 7B of the 2002 Act confined to an appeal under section 84(1)(c)? The argument of Mr Malik on behalf of the Appellant drew attention to the cluster of statutory provisions formed by sections 82, 84 and 86. He linked the words “ is required to determine ” in section 117A to the words “ must determine ” in section 86(2). He also sought to forge a nexus between section 117A(1)(b) and section 84(1)(c). He contended that the exercise of considering all of the provisions belonging to the statutory context in play impels to an affirmative answer to the question posted above. It was further submitted that the criteria enshrined in paragraph 276ADE and Appendix FM of the Immigration Rules are clear and objective, leaving no scope for applying the section 117B considerations.

It was further argued that i n cases of the present kind it is not the Secr etary of State’s decision to remove a person from the United Kingdom which is challenged on Article 8 grounds: rather, it is the consequence of the decision, or the further action taken via removal directions , which is objectionable. Mr Malik submitted that t he construction for which the Appellants contend is not undermined by either Dube (Sections 117A – 117D) [2015] UKUT 90 (IAC) or YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292. It was also argued that the language of the new section 84, deriving from section 15 of the 2014 Act, points to a consistent i ntention on the part of Parliament. Finally, Mr Malik prayed in aid the following passage in Forman (ss 117A-C – considerations) [2015] UKUT 00412 (IAC) , at [17](i):

The submissions of Mr Sheldon on behalf of the Secretary of State , primarily, drew attention to the differing ways in which the Appellants’ appeals were canvassed before the FtT. This was due to the differing circumstances of the two children and the distinctive circumstances of their parents. Thus while section 55 of the Borders, Citizenship and Immigration Act 2009 was invoked, this applied to the younger child only; paragraph 276 ADE of the Rules applied to the children, but not the parents; paragraph 276 ADE(1)(iv) applied to the older child, but not the younger one in whose case the relevant provision was paragraph 276 ADE(1)(vi); and paragraph EX.1 of Appendix FM applied to the parents and the older child, but not the younger one. Mr Sheldon observ ed that i t would appear that all of the Appellants asserted the existence of individual private lives in the United Kingdom. Moreover, the older child has a girlfriend in the United Kingdom (who testified) and the mother’s father is a British citizen. Mr Sheldon submitted that, notwithstanding these differences and variations, the main question for the FtT was whether it was reasonable to expect the family to return to Mauritius. This is reflected in the key conclusion in [61] of the determination:

Next, Mr Sheldon drew attention to the consonance of language found in paragraph 276 ADE(1)(iv) of the Rules (“ and it would not be reasonable to expect the applicant to leave the UK ”) and section 117B(6)(b) of the 2002 Act (“ it would not be reasonable to expect the child to leave the United Kingdom ”) and paragraph EX.1(ii) (“ it would not be reasonable to expect the child to leave the UK ”). Mr Sheldon submitted that within [64] of the FtT’s determination there are two distinct and perfectly valid conclusions:

i t would not be unreasonable to expect the family and the older child in particular to return to Mauritius; and

t he Appellants’ lack of financial independence was a factor which operated to their detriment.

Pausing at this juncture, I find Mr Sheldon’s analysis of the determination of the FtT persuasive. It flows from an evaluation of the determination as a whole and does not rely on forensic microscopic dissection. Furthermore, it was not really countered in the arguments of Mr Malik. I further agree with Mr Sheldon’s alternative submission. This was to the effect that even if the Appellants’ construction of the relevant statutory provisions is correct and the FtT made the error asserted the net effect would have been the adoption of three (rather than two) separate routes to the same de s tination, namely paragraph 276 ADE of the Rules , paragraph EX.1 thereof and sections 117B(6) and 117D(1)(b) in tandem. As a result, the outcome of the appeals would have been no different.

It follows that this ground of appeal must fail. Notwithstanding, given the full argument on the issue and the special listing status of this appeal, I consider it appropriate to examine the issue of statutory construction which formed the centrepiece of this ground. The argument on behalf of the Secretary of State is that sections 117A – 117D of the 2002 Act apply to appeals brought under both section 84(1)(c) and (g). In my judgment, this submission is correct. Fundamentally, it is compatible with the ordinary and natural meaning of the statutory words. Furthermore, it yields an unremarkable and perfectly workable outcome, harmonious with the other elements of the statutory framework. In contrast, I consider the construction advanced on behalf of the Appellants to be strained and distorted. In my view there is no sensible distinction between an Article 8 assessment in an appeal pursued under section 84(1)(c) and an Article 8 assessment in an appeal pursued under section 84(1)(g). The principles governing the Article 8 assessment must, in each case, be the same. Article 8 does not possess the chameleon character which these arguments require. Logic and common sense dictate this construction.

Furthermore, while it is correct that i n a section 85(1)(c) appeal the focus is on the immigration decision under challenge and i n a section 84(1)(g) appeal the focus is on removal of the Appellant from the United Kingdom in consequence of the immigration decision under challenge , I consider this to be of no moment . If Parliament had intended to make the distinction advanced by the Appellants, one would expect to find explicit and unambiguous words to this effect. There are none. In addition, I offer the observation that while this discrete issue was not ventilated in argument, it is unclear whether this distinction could have been legitimately made in any event without, simultaneously, amending the Human Rights Act 1998 , which, per section 6, makes it unlawful for a public authority to act in a manner incompatible with a person’s protected Convention rights.

My conclusions on the issue of statutory contribution raised by the first ground of appeal are, therefore, twofold. First, assuming the underpinn ing of this ground to be sound , the FtT did not commit the error of which the Appellants complain. Second, this ground is based on a construction of the relevant statutory provision s which I consider misconceived and, accordingly, lacks the underpinning assumed to be correct for the purpose of the first of these conclusions.

Do section 117B(4) and (5) oblige Tribunals, without choice or discretion, to attribute “ little weight ” to the considerations specified therein? The argument developed by Mr Malik is that Article 8 ECHR forms part of domestic statutory law and it is the duty of c ourts and t ribunals to interpret it like any other statute and give effect to it according to what they consider to be its proper meaning: see the discussion in Re P [2008] UKHL 38, at [33]. This is a principle which reflects the rule of law , one of the axioms whereof is that statute law be mediated by an authoritative judicial source independent of the legislature, the e xecutive and the public authority which administers the statute: see R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin) at [36] – [38]. Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law: see R (Evans) v Attorney General [2015] UKSC 21, at [51] – [59].

The next step in the Appellants’ argument involves the proposition that it is for the c ourt or t ribunal concerned to decide the issue of proportionality under Article 8(2) ECHR. In performing this function the c ourt or t ribunal decides how much weight is to be attributed to competing considerations in determining how the balance should be struck between the public interest and protected individual rights: see inter alia , Huang v Secretary of State for the Home Department [2007] UKHL 11 and EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41. The doctrine of judicial pre cedent requires lower c ourts and t ribunals to follow binding authorities of superior Courts. As a result, section 117B(4) and (5) does not require the c ourt or t ribunal concerned to ascribe “ little weight ” to the matters specified therein. Rather, it is argued that what appears to be a clear and strict instruction to the c ourt or t ribunal can effectively be ignored, with the result that the Judge is unconstrained in deciding how much weight to accord to each of the listed considerations.

The riposte of Mr Sheldon on behalf of the Secretary of State is that the meaning of section 117A(2) is unambiguous: in conducting the Article 8(2) proportionality assessment the c ourt or t ribunal concerned must have regard to the specified considerations. There will be no obligation to do so in cases where the considerations do not arise. The “ little weight ” provisions in section 117B(4) and (5) are the statutory incarnation of principles well established in both the domestic and Strasbourg jurisprudence. These are conveniently summarised in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin), at [38] – [41]. Section 117B(5) in effect operates as a reminder to c ourts and t ribunals of a principle which, irrespective of its recent incorporation in statute, they would be obliged to apply in any event. Finally, Mr Sheldon submitted that this issue of construction arises in a vacuum, given that in dismissing the appeals the FtT did not decide that little weight should be given to either of the matters specified in section 117B(4) and (5).

It is convenient to address this latter argument first. In short, I find it persuasive . The central issues for the FtT were whether it would be reasonable to expect the younger child to return to Mauritius and whether there were any insurmountable obstacles to the reintegration in Mauritius of the other three Appellants. I have rehearsed in [ 4 ] and [5] above the relevant provisions of both Part 5A of the 2002 Act and the Rules. I have concluded that the FtT did not engage in any impermissible elision. Furthermore, there is no adverse “precariousness” finding in its determination. The only provisions of Part 5A considered by the FtT were section 117B(3) and (6). It follows f ro m this analysis that, in my judgment, Mr Sheldon’s submission is to be accepted. The construction of sections 117A and 117B urged on behalf of the Appellants simply does not arise having regard to the provisions of Part 5A which the FtT considered and its ensuing findings and conclusions.

While the second ground of appeal must, therefore, fail, given the fullness of argument on the statutory construction issue I would add the following. First, I reiterate what this Tribunal said in Forman , at [17]:

These provisions apply in every case where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under Article 8 ECHR and, as a result, would be unlawful under section 6 of the Human Rights Act 1998. Where a Court or Tribunal is not required to make this determination, these provisions do not apply.

The so-called “public interest question” is “the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).”, which appears to embrace the entirety of the proportionality exercise.

In considering the public interest question, the court or tribunal must have regard to the considerations listed in section 117B in all cases : per section 117A(1) and (2).

In considering the public interest question in cases concerning the deportation of foreign criminals, the court or tribunal must have regard to the section 117B considerations and the considerations listed in section 117C.

The list of consid erations in sections 117B and 11 7C is not exhaustive: this is clear from the words in parenthesis “(in particular)”.

The court or tribunal concerned has no choice: it must have regard to the listed considerations. ”

Next, in construing the provisions under scrutiny, certain observations about the structure and syntax of sections 117A and 117B are appropriate. The draftsman’s mechanism of enjoining a decision maker, whether it be a c ourt or t ribunal or other agency, to “ have regard to ” specified matters is of some longevity. It is long established that where this mechanism is employed, the corresponding duty is to obey the legislature ’ s instruction, that is to say the decision maker must have regard to the matter in question. In the typical statutory model, the legislature goes no further. Where this model is invoked this denotes the first stage in the exercise to be performed by the judge or decision maker . T he second stage is a product of the common law : it imports a duty to give such rational weigh t to the matters specified as the judge or decision maker consider s appropriate . W ithin this formulation lies the principle that in the generality of cases in volving decisions of this genre the barometer for judicial review , or appeal on a point of law, is the Wednesbury principle. See, for example, Tesco Stores v Secretary of State for the Environment and Others [1995] 1 WLR 759 . Lord Hoffmann ’s formulation of the principles at [56] – [57] and [ 68 ], while devised in a planning law context, applies generally .

The statutory model for which the legislature has opted in sections 117A and 117B is not the typical one. True it is that i ts first striking element is the familiar one of obliging the c ourt or t ribunal concerned to have regard to specified considerations: per section 117A(2). These obligatory considerations are then listed in sections 117B and 117C. As section 117C does not arise in this appeal, I say nothing more about it. As regards section 117B, there is a total of six “ considerations ”. Some of these have the dual identity of statutory considerations and legal principles, being readily traceable to both Strasbourg and domestic jurisprudence. The characteristic which links the “ considerations ” listed in section 117B(1), (2), (3) and (6) is that of the “ public interest ”. These provisions reflect the reality that the public interest is multi - layered and has multiple dimensions. Those aspects of the public interest which the legislature has identified as considerations to be taken into account as a matter of obligation are contained in these provisions.

In contrast, t he two “ considerations ” contained in section 117B(4) and (5) are somewhat different from the other four , in the following respects . First, they make no mention of the public interest. They are, rather, concerned with facts and factors which, while bearing on the proportionality assessment under Article 8(2) ECHR, shift the focus from the ambit of the public interest to choices and decisions which have been made by the person or persons concerned in their lives and lifestyles . Second, there is a degree of tension between a c ourt or t ribunal having regard to a specified factor , as a matter of obligation (on the one hand) and (on the other) giving effect to a Parliamentary instruction about the weight to be given there to. Indeed, in giving effect to section 117B(4) and (5), the c ourt or t ribunal concerned is not, in truth, performing the exercise of having regard to these statutory provisions. Rather, the Judge is complying with a statutory obligation, unconditional and unambiguous, to give effect to a parliamentary instruction that the considerations in question are to receive little weight.

All of the six factors contained in section 117B are properly seen as a rehearsal of well established principles of law and/or provisions of the Immigration Rules which have become familiar to all who practis e in this field . Furthermore, this discrete statutory model develops the increasingly familiar device of codifying and incorporating Article 8 principles in the Immigration Rules. In the Part 5A model the legislator s have taken a step further by giving expression to such principles in primary legislation.

I would add that I am satisfied that there is nothing in this analysis which promotes the Appellants’ argument. The elements of this analysis, interesting though they may be , are, ultimately, of little moment. True it is that t he drafting of the new statutory provisions is far from felicitous. A statutory exhortation to “ have regard to ” a consideration is not the same as a statutory instruction and corresponding obligation, to “ give little weight ” to a specified consideration. The infelicities of drafting in these particular provisions are not unique: section 117A(2), structurally and syntactically, suffers from comparable infelicities. The words in parenthesis “ (in particular) ” are detached from the position which they should ideal ly occupy and the distant separation of “ to ” from “ have regard ” similarly jars. However, while the drafting could undoubtedly have been better, I consider the underlying intention to be abundantly clear, expressed in unambiguous language. W hile the drafting of these critical statutory provisions wins no literary prizes, I consider that the substance of the duty imposed on c ourts and t ribunals by section 117A(2) admits of no doubt or ambiguity.

The argument advanced by Mr Malik on behalf of the Appellants explicitly acknowledges that if the statutory provisions under scrutiny are possessed of the clarity which I have found it must fail. It founders accordingly. To this I would add that there is no legal principle of which I am aware confounding the conclusion that an instruction by the legislature to a c ourt or t ribunal to attribute little weight to the matters specified in section 117B(4) and (5) either contravenes some constitutional norm or, in order to preserve the constitutional balance, must be construed as narrowly and strictly as possible and in a manner which unshackles the Judge from the constraints imposed. The United Kingdom , being one of those states which operates the so-called “ dualist ” doctrine, it is by statute that Article 8 forms part of the domestic law of this jurisdiction and it is by the same vehicle viz statute that Parliament has chosen to calibrate certain aspects of its operation in our legal system. I consider that th is gives rise to no constitutional trespass or imbalance. I further consider this analysis entirely consistent with the passages in the judgment of Laws LJ in Cart ( supra ) on which the Appellants rely. Ditto those in Evans ( supra ). My final conclusion is that the statutory provisions under scrutiny do not h ave the effect of abrogating or eclipsing any fundamental right or any principle of the rule of law. Every c ourt or t ribunal would be attributing little weight to the matters specified irrespective of the parliamentary instruction in primary legislation . Approach ed in this way, these new statutory provisions may be viewed both as a reinforcement of established principles, all Judge made and a reminder to Courts and Tribunals of the need to give effect to them.

In the context of section 117B(4) and (5) of the 2002 Act, is the establishment (or establishing) of private life confined to its initiation, or creation? Mr Malik submitted that the normal meaning of the verb “ establish ” impels to an affirmative answer. In response to a question from the Tribunal, Mr Malik accepted that private lives and relationships are by their vary nature effervescent and dynamic rather than static. He agreed that neither comes into existence abruptly. Rather, both are developed progressively, with a distinct element of evolution. While it is a truism that every person ’ s private life and relationships develop at different paces, some more quickly than others, I consider that this does not a ssist the Appellant s ’ argument. On the contrary it confounds it.

In choos ing the verb “ establish ” in section 117B(4) and (5), it seems likely that the draftsman has simply drawn from the long standing and repeated judicial espousal of this term. Developing the analysis begun in [24] above, I consider that, in this statutory context, “ established ” is synonymous with “ developed ”. The construction of “ established ” advanced on behalf of the Appellants is, in my view, artificially narrow. I t is further defeated by the long established absurdity principle of statutory construction, familiar to all: Parliament is presumed not to have intended an absurd effect or consequence. T he suggestion that the “ little weight ” instruction enshrined in section 117B(4) and (5) applies only to the beginning of a person’s private life or the commencement of a relationship formed with a qualifying partner and not the continuance of either results in a construction of these provisions which, in my estimation, is manifestly unsustainable to the point of absurdity. Why penalise the former and not the latter? No rational explanation or justification for this differential treatment was advanced in argument and I am unable to conceive of any.

Furthermore, the construction advocated on behalf of the Appellants would, in my opinion, be unworkable in practice. The exercise of attempting to delineate the formation of a person’s private life or relationship with a qualifying partner from the continuation and extension thereof would be an impossible one in practice. In this context one is reminded of the truism that Parliament legislates in the real world. T here is no conceivable rational distinction to be made between the two concepts, or scenarios . For this combination of reasons the third ground of appeal must fail.

Is a “precarious” immigration status, in the context of section 117B(5) of the 2002 Act, confined to cases where the person concerned is afforded either temporary admission to the United Kingdom or a grant of leave to remain under a category which permits no expectation of any further such grant? Mr Malik submitted that the word “ precarious ” , in ordinary language, denotes something uncertain, unsafe or shaky. Pausing, I find no reason to dissent from this contention. Developing his argument, he submitted that a person’s residence is not precarious in this sense where there is valid leave to remain as a student. This (he submitted) is to be contrasted with residence pursuant to temporary admission or under a category which by its nature admits of only very limited permission to stay with no provision for further exten sion – for example, entry and sojourn pursuant to a visitor’s visa. Finally, it was argued that a “ precarious ” immigration status is, in the Strasbourg and domestic jurisprudence, generally associated with unlawful residence.

The primary submission of Mr Sheldon on behalf of the Secretary of State is that the “ precarious ” provision in section 117B(5) does not arise on the facts of this case. Consistent with my analysis of the determination of the FtT and associated conclusions – see above – I concur with this submission. This ground of appeal must fail accordingly.

I consider that Mr Malik’s submission is confounded in any event by the decision of the Upper Tribunal in AM at [19] – [33], AM (S117B) Malawi [2015] UKUT 260 (IAC), at [19]–[33] and, in particular, the conclusion enshrined in [32] :

The argument that in the Strasbourg and domestic jurisprudence a precarious immigration status generally equates to unlawful residence was not developed by reference to any decided case s . Furthermore, it is not easily reconciled with the Appellant’s principal contention, formulated in [3] (iv) above. In addition, in Jeunesse v the Netherlands (Application N o. 12738/10), the G rand C hamber stated that the Applicant’s residence in the Netherlands during a 17 year period - which, on t he facts of her case, could not be described as anything other than precarious - was unlawful: see [102]. She was an alien whose presence was “tolerated” by the host state: see [103]. The precarious nature of her presence emerges clearly in the succeeding passage:

I consider that the word “ precarious ” is an unsophisticated, unpretentious member of the English language. It denotes generally, something which is unstable, uncertain, fragile. It describes a state of affairs, condition or status which is bereft of guarantees and security. It is the antheisis of something which is stable, secure, certain. This is its ordinary and natural meaning. In deciding whether a person’s immigration status is “precarious”, the application by the court or tribunal concerned of this ordinary and natural meaning will focus on the nature, quality and reality of such status.

Giving effect to the principles and approach outlined above, I conclude unhesitatingly that in enacting these statutory provisions it was the intention of the legislature that a person who is granted limited leave to enter and remain in the United Kingdom as a student is possessed of an immigration status which is precarious. Such status regulates the life, arrangements and affairs of the person concerned for a measured period of time and with no assurance of continuation or extension. It does not extend beyond the short or medium term. Its effect is to convey to the beneficiary from the outset an unequivocal message, or admonition , that permission to reside in the United Kingdom for the permitted purpose and complying with all of the stipulated conditions will expire on a specified date , or sooner in certain eventualities . The immigration status of every such person is, in my view, both captured and defined by the adjective “precarious” . Furthermore, P arliament has made a clear and deliberate distinction between those unlawfully present in the United Kingdom and those whose presence derives from a precarious immigration status. The suggestion that Parliament has legislated in a manner which treats unlawful immigration status as synonymous with precarious immigration status is confounded by the clear statutory language and has no jurisprudential underpinning which was brought to the attention of the Tribunal . I reject all of Mr Malik’s arguments accordingly. For this combination of reasons the fourth ground of appeal must fail.

On the grounds and for the reasons elaborated above I dismiss these appeals and affirm the decision of the FtT.