Court of Appeal considers the correct approach to ECHR, art 8 in light of NIAA 2002


Re: Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803

The appellant Tanzanian national entered the UK as a student in 1997, and was granted further leave to remain as a student until November 2009, when she applied for indefinite leave to remain on the basis of her length of residence. This application was rejected. The appellant made a renewed application in August 2012, but changes to the Immigration Rules prevented her from being able to demonstrate her entitlement. The Home Secretary formed the view that neither the Immigration Rules nor any ECHR, art 8 right entitled her to further leave to remain.

The appellant challenged this determination before the First-tier Tribunal (FTT), arguing that her private life ought to entitle her to leave. She relied on her relationship with a friend, who was dependent on her for support due to illness, and her relationship with her niece. She also emphasised her fluency in English, her charitable work and the fact that she was not financially dependent on the state, receiving financial support from friends and family. The FTT considered these arguments, but ultimately found that the statutory framework in the Nationality, Immigration and Asylum Act 2002, Pt 5A favoured the public interest in immigration control, and held that removal was proportionate.

The appellant challenged this decision on three grounds.

First, she argued that the FTT had erred in finding that her status had been precarious from the beginning, for the purposes of s 117B(5). The court rejected this submission, holding that her leave to remain had been specifically limited to the time period required for the completion of courses of study. Therefore her stay in the UK at all times was liable to termination.

Secondly, she submitted that s 117A(2), read with s 117B(5), provided the court or tribunal with a discretion to attach more than ‘little weight’ to private life established while a person’s status was precarious, in appropriate cases. The court accepted that in exceptional circumstances greater weight could be attached to private life, in order for the provisions to be compatible with ECHR, art 8. However, in this instance, there were no compelling circumstances to warrant a departure from the approach in s 117B(5).

Finally, she challenged the manner in which the tribunal had approached her proficiency in English (s 117B(2)) and her financial independence (s 117B(3)). The court held that the FTT had not erred in regarding these as neutral factors. The fact that she was dependent on others for finances did not mean that she was entirely independent.

Appeal dismissed.

Hugh Southey QC was involved in this case.