The Court of Appeal (CoA) considered the weight to be given to relationships amounting to ‘family life’ formed during unlawful residence.
Background:
Mr. Arshad, a Pakistani citizen, came to the UK in June 2008 on a family visa, which he subsequently overstayed. He was encountered, working illegally, on 19 May 2011, and served with removal papers. He made an unsuccessful application for leave to remain on human rights grounds in 2011. He made a second application, based on his private and family life, on 10 February 2020, which was also refused by the Secretary of State. This rejection was due to Mr. Arshad not having met the requirements of the Immigration Rules, specifically paragraph 276ADE(1)(i) concerning long residence or significant integration obstacles.
The decision-maker also found no exceptional circumstances that would make the refusal constitute a breach of Article 8 of the European Convention on Human Rights (ECHR), when considering his relationships with his sister and her children were formed during his unlawful stay and that the children's best interests were not unduly affected by his potential removal.
He appealed to the First-tier Tribunal (FTT), which found that his removal would have unjustifiably harsh consequences for his nieces and nephews, with whom he had a very close bond, effectively acting as a "third parent". The Secretary of State appealed this decision to the Upper Tribunal (UT), which overturned the FTT decision. Mr. Arshad appealed to the CoA.
Decision:
The Court of Appeal dismissed the appeal. The Court heavily criticised the FTT’s decision, with the Court noting the reasoning of the FTT was “a euphemistic and inadequate account for this purpose. The FTT obscured the fact that Mr. Arshad has been here illegally since January 2009 by saying that his immigration history 'is not ideal, but it is not the worst by any means'.”
The Court focused on clarifying the meaning and significance of "family life" and "precariousness" in the context of the appeal, before addressing whether the FTT had erred in law. The Judge noted that neither "family life" nor "precarity" has a fixed legal definition, and using them loosely can cause confusion.
While the FTT and the UT agreed that Mr. Arshad's relationship with his sister and her children constituted "family life," the judgement stresses that the nature and quality of such relationships are crucial for the proportionality assessment under Article 8. Core family life, such as parents and young children living together, carries more weight than more distant relationships, such as an uncle and nieces/nephews with both parents present. Labelling a relationship as ‘family life’ is the starting point.
Regarding "precarity," the judgement agrees with the Secretary of State's submission that its meaning must be clear in each case. Mr. Arshad's situation was deemed to be “at the far end of the spectrum” of precarity, as he had remained in the UK unlawfully since his short-term visa expired in 2009. It should be noted that this is distinct from those individuals with continuous leave to remain or those in intermediate situations.
The Court found that the FTT failed to adequately consider the fact that Mr. Arshad's relationships were formed or developed during his long period of unlawful presence.
Implications:
This decision can have a significant impact on future cases involving non-settled migrants. The judgement offers a good definition of precarity. It highlights that there is a spectrum of precarity, and the weight given to family or private life formed during such periods varies accordingly. It is harder for extended family members to meet the threshold than it is for parents.
Most importantly, this case reinforces the principle that any family life established or developed during unlawful residence carries less weight in the proportionality assessment under Article 8. The immigration history and manner in which the family ties have formed will thus play a crucial role. This ruling demonstrates the balancing of family life considerations against the requirements of a firm and fair immigration policy.
