Introduction

The judgment in Arshad v Secretary of State for the Home Department ([2025] EWCA Civ 355), delivered by the England and Wales Court of Appeal (Civil Division) on 28 March 2025, constitutes an important development in the judicial balancing of family life considerations against the requirements of a firm and fair immigration policy. Mr. Arshad, a Pakistani citizen who had lived in the United Kingdom for more than six years, challenged the immigration decision that refused leave to remain on the basis of his human rights, particularly Article 8 for the protection of family and private life.

This case revolves around complex issues such as whether the relationship developed in circumstances of unlawful presence (or what the law terms “precarious family life”) should be accorded weight in the proportionality analysis, and the manner in which public interest in enforcing a lawful immigration regime is to be balanced with the best interests of children and other family members. Mr. Arshad’s case was marked by a layered history—his initial application, a subsequent human rights claim emphasizing his intimate connection to his sister and her children, and the varying tribunals’ assessments of his immigration history and family ties.

Summary of the Judgment

The judgment begins with a review of Mr. Arshad’s immigration history, noting that he overstayed his visa after entering the UK in 2008 and subsequently applied for leave to remain on human rights grounds in 2011 and 2020. The first-tier tribunal (F-tT) originally recognized the existence of a “family life” relationship with his sister and her children. However, on review, the Upper Tribunal (UT) re-made the decision, emphasizing that the family life in question was established under circumstances of illegal presence, thereby adversely affecting the weight that such relationships could command in a proportionality analysis.

The UT ultimately held that the removal of Mr. Arshad did not amount to a breach of Article 8 rights. The UT’s proportionality assessment weighed the public interest in maintaining immigration control against the individual’s rights, including the children’s best interests. While acknowledging his significant role in supporting his nieces and nephews, the Tribunal concluded that the family relationships, given they were formed during periods of unlawful presence, were not sufficiently weighty to override the need for immigration enforcement. Consequently, Mr. Arshad’s appeal to the Court of Appeal was dismissed.

Analysis

Precedents Cited

The judgment is deeply rooted in a rich tapestry of case law, with several key precedents cited:

• Uddin v Secretary of State for the Home Department [2020] EWCA Civ 338: This case underscored the proper approach to balancing the competing interests in immigration cases involving family life and harsh consequences upon removal.
• Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31: The principles laid down in Kugathas were instrumental in guiding the tribunal’s approach in classifying relationships as meeting—or not meeting—the threshold for Article 8 protection.
• Ghising v Secretary of State for the Home Department [2012] UKUT 160: Reinforced the analysis of family relationships and the necessity to balance them in immigration contexts.
• Kopf and Liberda v Austria [2012] 1 FCR 526: This decision illustrated that the failure of domestic courts to address family ties adequately could lead to a breach under Article 8, a consideration weighed by the decision-maker when assessing proportionality.

In addition, authorities such as R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 and recent decisions in Agyarko, Jeunesse, and Lal provided the underpinning framework for evaluating “precarious family life.” These cases were extensively relied upon to clarify the boundaries between private relationships formed during lawful residence and those established under precarious immigration status.

Legal Reasoning

At the heart of the legal reasoning is the assessment of proportionality under Article 8 of the European Convention on Human Rights. The tribunals adopted a two-stage analysis: first, determining whether the strict provisions of the Immigration Rules were satisfied; and second, whether the refusal of leave to remain infringed Mr. Arshad's Article 8 rights.

The F-tT had found significant emotional attachment between Mr. Arshad and his sister’s children—describing his role as “akin to a third parent.” However, the UT criticized the earlier tribunal for failing to duly consider that these family ties had been formed and developed while Mr. Arshad was unlawfully present in the United Kingdom. In other words, although the emotional and practical aspects of family life were established over a sustained period, the fact that they originated under “precarious” circumstances meant that, within the proportionality test, such relationships must be given “little weight” unless exceptional circumstances are evident.

The UT further emphasized that the requirement to balance the public interest in maintaining a robust immigration regime was a mandatory consideration. Factors such as Mr. Arshad’s delayed attempts to regularize his status, his lack of parental responsibility for the children, and the continued ability of the children to maintain relationships with their primary caregivers in the UK all contributed to the conclusion that removal would not cause “unjustifiably harsh consequences.”

Impact

The judgment is likely to have significant ramifications on future cases involving non-settled migrants with established family life. Its detailed analysis of the “precariousness” of family life serves as a reminder to tribunals and courts alike that:

• Family relationships established during unlawful or precarious stays are subject to a lower evidential weight in proportionality assessments.
• Immigration history and the manner in which family ties have been formed play a critical role in the balancing exercise between individual rights and the public interest.
• The best interests of children remain a primary consideration, but when weighed against a stringent immigration regime, the presence of other mitigating factors may result in a decision to enforce removal.

This approach reinforces the broad judicial consensus that while Article 8 rights are vital, they must be interpreted within the framework of a country’s sovereign interest in controlling its borders and ensuring compliance with immigration laws.

Complex Concepts Simplified

Two central concepts in the judgment are “precarious family life” and the process of proportionality under Article 8:

• Precarious Family Life: This refers to family relationships that have been developed when a person’s immigration status is insecure or unlawful. The principle is that such relationships, while emotionally significant, may be given less weight in legal assessments when compared to relationships formed when a person is lawfully resident.
• Proportionality Assessment: Proportionality under Article 8 requires a careful balancing of the individual’s right to respect for family and private life against the state’s public interest in controlling immigration. The court must decide whether any interference (such as removal) is justified in pursuit of a legitimate aim.

By explicitly outlining these ideas, the Court clarifies that while family life is a protected right, its protection may be constrained by factors such as the manner in which it was established.

Conclusion

In summary, the Court’s decision in Arshad v Secretary of State for the Home Department reinforces the principle that the weight accorded to family life must be carefully calibrated against the need for effective immigration control. The judgment clearly articulates that family relationships established in a context of unlawful or precarious stay may have a reduced persuasive effect in the proportionality assessment under Article 8, unless exceptional circumstances can be demonstrated.

As the judgment concludes with the dismissal of Mr. Arshad’s appeal, it serves as a key precedent for future cases where the interplay of family life, immigration history, and public interest is at issue. Legal practitioners and tribunals will now have further guidance on how to interpret “precarious family life” and apply the established proportionality test in increasingly complex immigration scenarios.

Ultimately, the case underscores the delicate balancing act between individual human rights and the sovereign duty to enforce immigration laws—a balance that courts will continue to shape with each successive decision.