ECHR, art 8 prevents someone from being removed from the UK where doing so would have a disproportionate impact on their private life and/or family life. Where a migrant seeks to rely on art 8, it is accordingly necessary for the Home Office, or on appeal the First-tier Tribunal, to conduct a balancing exercise between the individual's private and family life rights on the one hand and the 'public interest' on the other.
By the Immigration Act 2014, Parliament introduced Part 5A to the Nationality, Immigration and Asylum Act 2002 which seeks to direct courts and tribunals as to how to conduct this balancing exercise. KO (Nigeria) and Rhuppiah are the first cases in which the Supreme Court has had to consider these provisions. In doing so, the Supreme Court has largely continued to narrow the scope of protection provided for migrants in the UK by art 8.
Part 5A of the 2002 Act comprises ss 117A-117D. S 117A(2) requires a court or tribunal, when determining whether an interference with a person's right to private and family life is justified, to have regard to the considerations listed in s 117B and, in cases concerning the deportation of foreign criminals, additionally to those listed in s 117C.
s 117B provides:
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(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.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
s 117C contains different matters to which regard must be had. Relevant for present purposes is that, for someone sentenced to less than four years imprisonment against whom a deportation order has been made, s 117C(5) provides that the public interest does not require the individual's deportation "where C has… a genuine and subsisting relationship with a qualifying child, and the effect of deportation on the…child would be unduly harsh."
Rhuppiah  UKSC 58 concerned s 117B(3) and (5). Mrs Rhuppiah, a Tanzanian national, entered the UK in 1997 with leave to remain for 3 months in 1997. She was granted various other periods of leave to remain, although sometimes with breaks between her visas during which time she was in the UK unlawfully. While studying at college, Mrs Rhuppiah met Ms Charles who suffers from a gravely debilitating illness. Mrs Rhuppiah lives with Ms Charles and provides care gratuitously to her. Mrs Rhuppiah's leave to remain expired in 2009 and she had not been able to obtain a visa since then. She applied for leave to remain on the basis that her removal would breach her art 8 rights. The Secretary of State disagreed. The First-tier Tribunal upheld the Secretary of State's decision, giving little weight to her private life, under s 117B(5) on the basis that it was established, it said, at a time when her status was "precarious". Additionally, the First-tier Tribunal considered that Mrs Rhuppiah was not "financially independent" to which it is required to have regard under s 117B(3).
Happily for Mrs Rhuppiah, the long duration of the proceedings meant that before the appeal to the Supreme Court was heard, she had achieved continuous residence in the UK for 20 years, which provided her with another route to remain under the Immigration Rules. Nevertheless, the Supreme Court decided that it was appropriate to hear and determine the appeal which raised issues of wide application.
The first question for the Supreme Court was accordingly whether her status in the UK had been "precarious". In relation to that, the Court adopted a narrow definition, concluding that a person's status is precarious if it is dependent upon a further grant of leave. This is to be regretted for two reasons.
First, this means that even those people who come to the UK on a visa which expressly provides a route to settlement and who might therefore reasonably expect to be able to develop their private and family life in the UK indefinitely, are to have little weight accorded to any such private and family life. The Strasbourg jurisprudence on precariousness generally refers to people who know at the time they start their family life, that it may not be able to continue in the host country. However, those on a route to settlement do not know that and their inclusion within the definition of precarious migrants runs counter to the grain and rationale provided by the Strasbourg Court.
Secondly, this definition runs contrary to the policy rationale for, for example, s 117B(2) and (3), of promoting better integration. If someone's private and family life is to be given little weight, not because of anything they can control such as financial independence or their ability in English, but by the type of visa they happen to possess, they have little incentive to integrate into the society to which they have migrated if regardless of their level of integration their family and private life rights are to be accorded little weight in any event. Whether migrants ought to integrate themselves or not into a host country is a political question on which reasonable opinions differ, but given that an express policy of the legislation appears to be to encourage such integration, for the Court to adopt an approach that undermines that is lamentable.
The second question for the Supreme Court was whether Mrs Rhuppiah was "financially independent" for the purposes of s 117B(3). In relation to this issue, the Court considered that financial independence meant independence from the state, not from all other individuals. This aspect of the judgment is to be welcomed. Whilst the protection of the public purse can be said to be in the public interest, it plainly does not require an individualistic approach to financial independence whereby members of a family should not rely on each other or divvy up different household duties differently.
In the case of KO (Nigeria) the Supreme Court had to consider the position of parents of children who have been in the UK for over 7 years, or are British or have leave as a refugee. Under s 117B(6) if it is not reasonable to expect that child to leave the UK then their parent can be granted leave too. A similar question is asked in the case of those subject to deportation orders under s 117C(5). In the Court of Appeal (at that stage the case was called MA (Pakistan) v The Upper Tribunal  EWCA Civ 705), it had been determined that, although the test in s 117B(6) was self-contained, in the sense that once the question whether it was reasonable to expect the child to leave the UK had been answered that determined the answer to the proportionality question, in determining that reasonableness question you could take into account any wrongdoing by the parents. The Supreme Court disagreed with this approach and restored the orthodox position that you cannot blame the child for the sins on the parents. However, the Court then held that the starting point in answering what is reasonable for the child is the expected location of the parents, as it will normally be reasonable to expect a child to live with his or her parents, and the wrongdoing of the parents may be relevant to that if that wrongdoing is what has caused them to lose their leave. There are three fundamental difficulties with this approach.
First, the reasoning is to some extent circular. The reason a Tribunal is asking this question is to determine whether a parent should be granted leave to remain in the UK. In order even to be asking that question, that parent necessarily has no leave to remain in the UK. In determining that it is reasonable to expect a child to follow a parent with no leave, it to some extent therefore assumes what it seeks to prove.
Second, in cases with two foreign-national parents, the starting point as a result of this judgment will always be that it is reasonable to expect the child to leave. However, the whole point of asking this question is to properly take into account the length of time or other connection with the UK that the child has, not the parents. We will have to see how this issue plays out in subsequent cases, but on the face of KO, this diminishes the position of children in the UK, even British children, which is to be regretted.
Thirdly, both of the cases before the Supreme Court concerning s 117B(6) were families where neither parent had leave to remain. Those are therefore simple cases in which to work out the correct starting point for the purposes of the reasonableness test. But what of families in which one parent has no leave, but the other does? And does it make a difference if that leave is temporary or permanent? What if the other parent is British? What is the starting point then? The answer is that we simply do not know. The Court appears to have approved a statement of the Court of Appeal in EV (Philippines)  EWCA Civ 874 at  which stated that "the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted." Unfortunately, that tells us nothing about how to conduct that assessment. Given that this was a test case in which the Supreme Court suggested the immigration law fraternity might have applied to leap-frog the Court of Appeal, it is deeply unsatisfactory that the Court did not consider how their judgment should apply more widely than the precise facts before them.