Supreme Court rules on definition of ‘precarious’ immigration status

The Supreme Court in Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58 has ruled that all migrants present in the UK who do not have leave to remain indefinitely have a precarious immigration status for the purposes of section 117B(5) of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002) and therefore, when their applications for leave to remain are considered, little weight should be given to the private life they have established.

What are the implications of the judgment?
Rhuppiah potentially affects all immigration applications and appeals that are based on a claimed breach of a person’s right to private life (rather than family life) under Article 8 of the European Convention on Human Rights (ECHR).

It is particularly relevant where the private life in question has been wholly or partly developed while the person’s immigration status was precarious. Rhuppiah tells us that ‘precarious’ refers to any time that the person did not have leave to remain indefinitely. Most statutory appeals based on private life claims are likely to fall under the guidance in Rhuppiah and so it is important for practitioners to be familiar with it.

While Article 8 ECHR case law is already a crowded space, Rhuppiah makes several key clarifications in this area and the practical effect of which is three-fold.

Firstly, while in many cases the public interest will require that little weight is given to a person’s private life, which has been developed when the person did not have indefinite leave to remain, that requirement is not absolute. There remains flexibility, in suitably strong or compelling cases, to disapply the ‘little weight’ provision in NIAA 2002, s 117B(5). Persons and their representatives need to evidence carefully the aspect of their case that can be considered compelling or exceptional in order to avoid decision-makers or judges dismissing their private life claims.

Secondly, to avoid claims being weakened by the effect of NIAA 2002, s 117B(3)—which requires persons seeking to remain in the UK on the basis of Article 8 ECHR to be financially independent—those persons and their representatives should provide detailed evidence to demonstrate their self-sufficiency, including evidence of third-party financial support.

Thirdly, the court emphasised that overall, the operation of NIAA 2002, Part 5A had to produce outcomes that complied with Article 8 ECHR. That provides some additional scope for representatives to argue for or against particular interpretations or applications of Parliament’s human rights framework. Appellants relying on Article 8 ECHR should consider the Immigration Rules and the statutory framework in NIAA 2002, Pt 5A, but the ultimate test is compliance with Article 8 ECHR.

Looking ahead, it seems likely that in appropriate cases, the Secretary of State will seek to expand the scope of precarious immigration status further still, so as to include persons with indefinite leave to remain who have embarked upon a course of criminal conduct.