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Court of Appeal: Article 8 assessments are fact intensive

Written by
Asad Ali Khan
Date of Publication:
14 October 2019

GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630 (04 October 2019)

GM arrived in the UK from Sri Lanka as a student in 2010 and in August 2012 she married another Sri Lankan national. Their first child was born on 31 October 2012. Her student visa expired in May 2013 and her husband was granted leave to remain until 2018 having lived continuously in the UK since 1998 without returning to Sri Lanka. In 2014, GM claimed asylum and made a human rights claim. The decision-maker rejected both claims on the basis that there were no obstacles to her returning to Sri Lanka and living there with her family. The couple then had another child and in August 2015 the FTT dismissed the appeal on all grounds. The FTT decided that GM's case needed to be considered under article 8 of the ECHR outside the Immigration Rules and that the public interest considerations under section 117B of the Nationality, Immigration and Asylum Act 2002 (as amended) applied but it decided that her removal from the UK was not a violation of article 8. The UT agreed with the FTT's decision. Later in 2018, the GM's husband and children were granted ILR. Since 2015, the Supreme Court had clarified the test to be applied under article 8 in relation to the rules and section 117B in the cases of Agyarko [2017] UKSC 11 (discussed here), Ali [2016] UKSC 60 (discussed here), KO (Nigeria) [2018] UKSC 53 (discussed here) and Rhuppiah [2018] UKSC 58 (discussed here).

GM submitted that the FTT had improperly applied the proportionality test in dismissing her human rights claim. The Court of Appeal allowed the appeal and addressed general points relating to the proportionality test, the little weight provisions in sections 117B(4) and (5), the interests of GM's children and the relevance of insurmountable obstacles. Holding that the judgments of the UT and FTT needed to be set aside owing to errors of law, failure to consider relevant facts and GM's family holding ILR, Green LJ also directed the SSHD pursuant to section 87 of the 2002 Act to reconsider GM's human rights claim that it would be a breach of article 8 for her to be removed from the UK. His Lordship also said that "there is a deeply disjointed feel to this case" and the court was "at a loss to understand why" the Home Office had not "pragmatically agreed to revisit" GM's position after her husband and children had been granted ILR. The court judged that without the benefit of the Supreme Court's jurisprudence the FTT had erred in approaching article 8 family life rights. Green LJ judged that "article 8 assessments are fact intensive" and so using comparators is of limited utility.

The Court of Appeal

Rather than remitting the matter back to the FTT, Green and Simler LJJ directed that the Home Office should consider GM's position afresh, in light of the altered circumstances, i.e. that GM's husband and her children had obtained ILR outside the rules because he was a legacy applicant. Their Lordships left it to the parties to discuss and agree the best way in which this can be achieved and the Court of Appeal considered the present-day evidence when it came to relief but addressed the impugned FTT on the basis of the evidence before the judge.

(i) Correct test

The court made six preliminary observations about the test to be applied (a) the rules and section 117B must be construed to ensure consistency with article 8, (b) the national UK authorities have a margin of appreciation, which is not unlimited but is nonetheless real and important, when setting the weighting to be applied to various factors in the overall proportionality assessment, (c) the proportionality test for an assessment outside the rules is whether a "fair balance" is struck between competing public and private interests, (d) the proportionality test needs to be applied on the "circumstances of the individual case", (e) there is a requirement for proper evidence and mere assertion by an applicant as to his or her personal circumstances and as to the evidence will not however necessarily be accepted as adequate, (f) the list of relevant factors to be considered in a proportionality assessment is "not closed" and 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.

Points (b), (c) and (d) arose out of Agyarko and Ali and point (e) derived from Mudibo [2017] EWCA Civ 1949 and point (f) had been given recognition in Ali and TZ and PG [2018] EWCA Civ 1109 (discussed here). The court said that a relatively well trodden list of factors tends to arise in the domestic cases and that other factors exist as identified in the Strasbourg and domestic case law and it can be seen from Ali – approving Jeunesse v Netherlands (2015) 60 EHRR 17 – that these factors are important: the personal conduct of an applicant or family member in relation to immigration control; the extent of social and economic ties to the UK; and any prolonged delay in removing the applicant during which the individual develops strong family and social ties. After having made these points the court turned its attention to the specific criticisms directed at the FTT.

(ii) Relinquishment of rights

The court examined the nature of the legal rights that risk being relinquished if a person has to leave in order to retain a family life. Mr Jafferji for GM argued that the FTT failed to address a relevant consideration, namely the nature of the rights that her family members might have to relinquish in order to leave and reside with her in Sri Lanka. Indeed, if the husband and children returned to Sri Lanka then they would have lost their discretionary leave and any benefits, such as legacy rights and a pathway to settlement, that such rights conferred. It had been pointed out to the Home Office that expecting the husband and children to go and live in Sri Lanka to be with GM would result in the nasty consequence that they risked losing their ILR status pursuant to paragraph 20 of the Immigration Rules and article 13 of the Immigration (Leave to Enter and Remain) Order 2000 whereby a person who is absent from the UK for more than 2 consecutive years loses ILR status automatically.

Lord Reed had observed in KO that a relevant question was always "where the parents … are expected to be" because it is generally reasonable for children to reside with them. Ali confirmed that a person's immigration status could "greatly affect the weight" to be given to his article 8 rights. Significantly, Lord Reed did not find very much practical difference between a settled person and someone without settled status would have been permitted to reside in the UK if an application was made, for example from outside the UK. "The underlying point" said Green LJ "is a practical one" and his Lordship remarked that:

33. … The law is not concerned with form but with the practical substance of the actual immigration status of the person in issue. It is for this reason that case law has indicated that even if a person has a "settled" status that might not be construed as inalienable if for instance the settled person then commits serious crimes which would nonetheless warrant removal on public order grounds.

The upshot is that someone arguably on pathway to settlement might relatively be in a stronger position than a person with discretionary leave (not on such a pathway) and this comparative position needs at least to be accounted for in the overall assessment of proportionality and fair balance. In both situations, rights may still be precarious but still the nature of the rights actually held was relevant. Hence, the FTT had not taken this consideration into account and the present case and the judge failed to analyse or weigh the nature and relevance of the legacy rights held by GM and the children as part of the proportionality exercise. The failure was material and the judge's omission constituted a failure to address a relevant consideration.

(iii) Family life and precariousness

It was submitted that on the whole and upon a fair reading, the FTT misapplied the "little weight" provisions of section 117B(4) and (5) to the generality of the evidence relating to family life and in so doing made an error of law and also of assessment. These provisions were irrelevant to GM's family life case and stated that little weight should be given to a private life or relationship formed with a qualifying partner established by a person who was in the UK unlawfully, or to a private life where a person's immigration status was precarious. In Rhuppiah it was held that the "little weight" section 117B(4) provision only applies to private life, or a relationship formed with a qualifying partner, established at a time the person was in the UK unlawfully. It therefore did not apply when family life was created during a precarious residence, i.e. a temporary, non-settled, but lawful, residence, such as the case in GM's appeal.

While GM's private life rights were admittedly "hopeless", the appeal in the FTT had focused upon family rights and the statutory discounting of the rights in section 117B(4) and (5) therefore had no part to play. The judge erroneously thought otherwise and failed to distinguish between the weight to be attributed to family life rights and private life interests in the assessment which followed. She incorrectly treated them as one. The FTT erred materially by thinking that the "little weight" provisions were relevant and it followed that it had wrongly discounted the weight to be accorded to the family rights relied upon in the proportionality assessment.

(iv) Relevance of awareness

Green LJ was also attracted to the submission that the FTT had failed to analyse the subjective knowledge of the family as to the persistence of their family life in the UK and the court analysed the situation through the lens provided by Ali and Rhuppiah as in the former case this was seen as an "important consideration" as it arose out of the Strasbourg cases and first principles. As analysed in Rhuppiah the question became whether family life was created at a time when the parties knew that the immigration status of one of them meant that the persistence of family life within the host state would from the outset be precarious. This was a wide-ranging test involving the awareness of all parties which went well beyond the normal precariousness test found in section 117B(5) that applied to an applicant's own, personal, private life interest. Green LJ observed that in Rhuppiah Lord Wilson referred to the "explicit need for awareness" when distinguishing between a precariousness analysis concerning an individual applicant under section 117B(5) and the analysis of a family. Ali approved of the approach in Jeunesse and therefore Green LJ held that:

39. This must be right and flows directly both from the logic of collective family life cases as distinct from individualised, private life cases, and is a distinction drawn in the case law.

The FTT's vantage point on examining precariousness was defective. The judge heard oral evidence from GM's husband. He had been on a recognised pathway to settled status when they married and over time affected their knowledge of the ability of their family life in the UK to persist but the Court of Appeal made no definitive finding on the point except that the omission of any recognition or analysis of the issue was potentially material.

(v) Children's interests

The FTT's analysis of children's interests – "paramount" under case law – was flawed. Lord Reed in KO drew the principles together in summary: a child cannot be blamed for the conduct of the parents even where that is characterised by criminality or misconduct; the question is "what is reasonable" for the child; it is "inevitably relevant" to determine where the parents "are expected to be" and the record of the parents might accordingly become relevant if it leads to their ceasing to have a right to remain in the UK and having to leave; and if one parent has no right to remain, but the other parent does, then that is the background against which the assessment must be conducted. GM's complaint was that the FTT erred by concluding that her husband was able to move to Sri Lanka and thus should and refusing to do so was his choice. The family unit would remain intact in Sri Lanka and the children would be fine. This however contradicted the clear/unchallenged evidence that there were strong reasons (among them his discretionary leave/legacy status) that he and the children would remain in the UK so as to retain their valuable status and avail its possible pathway to settled status.

It was open to the FTT to reject the husband's evidence but the judge did not do so because it appeared to be plausible. The FTT could not lawfully proceed upon the assumption that the father would choose to leave the UK and the context fell to be examined by accepting that the father would stay and their family life would be seriously disrupted by children's separation from their mother or from their father when no dispute arose as to the fact that he was the bread winner and that the children benefited from having two parents. The law supported this view and the FTT had erred by thinking that husband would make a choice that he stated that he would not make. The FTT thus ignored the implications of this and overlooked the risk that the family could be ruptured as a result of her decision, which is to be avoided in light of the ruling in Ali, and the error was not immaterial.

(vi) Insurmountable obstacles

GM said that the FTT incorrectly applied an overly narrow ability or capability test and she argued the judge treated her conclusion on ability and capability as essentially dispositive rather than simply one factor amongst others to take into account. It flowed from Agyarko that the insurmountable obstacles analysis amounts to a freestanding prima facie test so as to ensure that the rules comply with article 8 even if there is violation of immigration law and leave can thus be granted in exceptional circumstances where removal would cause "unjustifiably harsh consequences" or where the family would face "very serious hardship" or "very significant difficulties in continuing family life outside the UK".

Under standard article 8 outside the rules the extent to which obstacles to return can be overcome under ECHR case law is simply a "relevant factor" in relation to "non-settled" applicants. It is not the test. The test must be applied in a practical and realistic sense in a fact specific way in each case. Very significant difficulties and very serious hardship will be required to succeed and unjustifiably harsh consequences would render refusal unlawful and warrant that leave be granted on the basis of exceptional circumstances. In relation to the development of a family life at a time when the parent's rights were precarious and in relation to an assessment outside the IR, the Court of Appeal in TZ and PG stated that the question was whether it could reasonably be expected that she/he will follow the removed person to keep their relationship intact. Importantly in Ali it was Lord Reed's view that national decisions-makers should advert to and clearly address evidence in respect of the practicality, feasibility and proportionality of removing a foreign parent in order to give sufficient protection and sufficient weight to the best interests of children. With that in mind, Green LJ explained that:

49. … Practicality and feasibility are not the sole lodestars since the court also identified "proportionality" which is separate and broader, and this involves assessing the issue from the perspective of a "fair balance".

Next, the court turned its attention to GM's argument that the FTT applied an ability or capability test in mechanistic manner. The FTT simply asked whether the husband could return and it cursorily rejected his arguments about his lack of ties with Sri Lanka and the difficulties of finding any work there. All this sat uncomfortably with the fact that this would put at serious risk the husband and the children's pathway to settled status through the husband's legacy case and associated discretionary leave to remain in the UK. Overall the Court of Appeal held that:

53. In our judgment the judge wrongly applied a mechanistic ability or capability test. She did not apply a proportionality test and she failed to address herself to relevant factors. Yet again, we cannot say that this error was immaterial.

Ali left no doubt that even if it is practicable and feasible for a person to return that is not the end of the story. Proportionality must also be considered and it necessitates a careful analysis of the fair balance that exists between the state's interest in immigration control and the individual's interests. The SSHD had no discernible, sensible, objection to the husband and children being in the UK. This point was relevant to any assessment of the proportionality of compelling the father and children to move to Sri Lanka if family life was to be preserved. The FTT did not address the reasonableness – or the fair balance – of forcing the husband's departure from the UK. It focussed on the ability of the husband to follow the wife and the Court of Appeal deciphered that while there is potential overlap between ability and reasonableness they are not the same because "a person might be able to return to a foreign country, yet it might still be unreasonable or disproportionate to compel return." The FTT made no point on whether it was proportionate or reasonable for the husband or for the children to lose their UK immigration law rights in the process of following GM to Sri Lanka.

(vii) Comparator cases

Addressing the value precedents as comparators on their facts, the court agreed with the submission that the pertinent question was whether in GM's case, the FTT had weighed the strengths and weaknesses properly. Green LJ agreed that if there was an error in the weighing of the relevant factors, or if relevant factors were simply not considered, then the overall proportionality balance is undermined. The court held that article 8 assessments are fact intensive and delving into comparators may be of limited utility. It rejected the SSHD's position that GM's appeal was on a par with the unsuccessful appeal of PG in the TZ and PG.

(viii) Relief and result

The FTT and the UT's judgment had to be set aside as did the initial decision-maker's decision. As to the question of relief, it was material that the husband and children were now entitled to remain in the UK indefinitely and it was no longer the case that their position was precarious. The court explained that it had a duty to do the right thing and adjudicate consistently with human rights law, taking into account the most up to date information. In GM's case there had clearly been a material change in circumstances and the husband and children were granted settlement/ILR and while making these grants the Home Office must have known that it was giving with one hand but taking with the other, knowing that by forcing the mother to leave the whole family would need to leave with her to maintain family life. With that in mind, Green LJ judged that:

58. On this analysis the family is placed in the most awful dilemma. If the father and children are to reap the benefits of their newly granted settled status, then they would have to do so without the wife and mother.

59. On the other hand, if the family is to be preserved as a unit then the father and the two children must leave the United Kingdom and thereby place in jeopardy their ILR and the settled status of three of the four family members.

60. 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.

Notwithstanding the above points, the Home Office (apparently on the GLD's advice) stuck to the intransigent position that it would only reconsider GM's case after her appeal had finished. The children were five and seven years old at the time of judgment and had tangible and strong social links within the UK and there was no question that the best interests of the children were to remain with both parents.

The Court of Appeal did not remit the case to the FTT because doing so would produce lengthy proceedings and Green LJ preferred the conclusion that the Home Office must decide GM's case afresh because such disposal also had the advantage of preserving full rights of challenge if the new decision was again flawed. The court this directed the Home Office pursuant to section 87 of the 2002 Act to reconsider GM's human rights claim in light of her new situation.

Comment

This judgment is a reminder for the Home Office (and their lawyers in GLD) that being pigheaded about things will not solve the problem for them and it will not get them off the hook every time. The SSHD had every opportunity to reconsider GM's case at an earlier juncture in time, for example when ILR was granted to the husband and children in 2018, but decided to keep the case in litigation and kept on wasting time and money just for the sake of it. However, the analysis of the Supreme Court's decisions on article 8 by Green LJ is rather helpful as it provides a neat and full view of the problematic field of private and family life claims in complex immigration cases.

The outcome in the case is also balanced in favour of others in GM's predicament because it does away with the unhelpful position that people are able to uproot their settled lives to move overseas and should do so and refusing do so was their choice (as the FTT judge had decided in this case). Mr Jafferji is very smart counsel and seems to have had the better of the SSHD in this case. He was the one who encouraged me to write this blog. We have won many judicial review cases over the years and he is the head of Clarendon Park Chambers and has also been busy writing his own blog.