Introduction

The case of Okonkwo (legacy/Hakemi; health claim) Nigeria ([2013] UKUT 401 (IAC)) adjudicated by the Upper Tribunal (Immigration and Asylum Chamber) on July 30, 2013, revolves around the immigration status of Bertha Joe-Okonkwo and her husband Joseph Okonkwo, Nigerian citizens residing in the United Kingdom. The central issue pertains to their application for discretionary leave to remain, focusing particularly on health-related claims under the European Convention on Human Rights (ECHR) Article 8.

Mrs. Okonkwo, diagnosed with severe kidney disease, underwent a successful kidney transplant in December 2010. Her dependency on immuno-suppressant drugs and specialized medical care formed the crux of her argument against removal from the UK. The appellants faced a series of legal challenges and appeals following the Secretary of State's refusal to grant their extension of stay, leading to this comprehensive judicial examination.

Summary of the Judgment

The Upper Tribunal examined whether there were errors of law in the Secretary of State's refusal to grant the Okonkwos discretionary leave to remain. The appellants contended that the refusal was unjust, failing to consider compassionate circumstances under Rule 395C of the Immigration Rules and human rights implications under Article 8 of the ECHR.

The Tribunal meticulously reviewed the procedural history, including previous tribunal decisions and the abrogation of Rule 395C. The primary focus was on whether the Secretary of State properly applied existing policies and whether the health claims under Article 8 were sufficiently considered.

Ultimately, the Tribunal dismissed the appeals, concluding that there were no errors of law in the Judge's decision. However, it acknowledged that future cases involving similar health-based Article 8 claims might warrant reconsideration, especially in light of evolving case law.

Analysis

Precedents Cited

The judgment references several key cases that influenced the Tribunal's decision:

• Hakemi and others [2012] EWHC 1967 (Admin) - Highlighted the importance of applying existing policies to relevant cases.
• Mohammed [2012] EWHC 3091 Admin - Addressed the fairness in applying policy instructions.
• Sapkota v SSHD [2011] EWCA Civ 1320 - Affirmed the necessity of one-stop decision-making in immigration cases.
• Patel v Secretary of State [2013] EWCA Civ 741 - Declared the Sapkota decision per incuriam, removing the obligation to make removal decisions simultaneously with refusals.
• JA (Ivory Coast) ES (Tanzania) v SSHD [2009] EWCA Civ 1353 - Explored health-based Article 8 claims.
• GS and EO (Article 3- health cases) [2012] UKUT 397 - Defined the threshold for health-related Article 3 claims.
• Akhalu (health claim: ECHR Article 8)[2013] UKUT 400 (IAC) - Considered the implications of state-provided medical treatment on Article 8 rights.

Legal Reasoning

The Tribunal delved into the application of Rule 395C of the Immigration Rules, scrutinizing whether there was undue delay by the Home Office in making decisions that affected the appellants' right to remain based on compassionate circumstances. It was determined that the length of residence alone, without accompanying delays attributable to the Home Office, did not warrant an exception under the existing policies.

On the human rights front, the Tribunal assessed whether the removal of Mrs. Okonkwo would violate Article 8 of the ECHR, which safeguards the right to respect for private and family life. While acknowledging the health implications of removal, the Tribunal held that the interference was justified and proportionate given the broader public interest and the immigration rules framework.

The Tribunal also addressed the argument that previous policy statements and the nature of Mrs. Okonkwo's medical condition should influence the decision. It concluded that without a clear, prior policy establishing an expectation for discretionary leave based solely on residence and health status, the Secretary of State's decision stood on firm legal ground.

Impact

This judgment reinforces the strict interpretation of immigration policies concerning discretionary leave to remain, especially regarding health-based claims. It underscores the necessity for appellants to present robust, well-substantiated arguments when invoking human rights under the ECHR, particularly Article 8.

Furthermore, the Tribunal's analysis clarifies the boundaries of policy application, emphasizing that length of residence must be accompanied by relevant delays attributable to the Home Office to qualify for exceptions. This delineation guides future cases, ensuring that similar health-related claims are meticulously evaluated within the established legal framework.

Complex Concepts Simplified

Discretionary Leave to Remain

Discretionary Leave to Remain (DLR) allows individuals who do not qualify under standard immigration rules to stay in the UK based on compassionate or compelling circumstances. This discretion is vital in cases where strict adherence to rules may result in unjust outcomes.

Article 3 vs. Article 8 ECHR

- Article 3 prohibits inhuman or degrading treatment or punishment. In immigration contexts, it may be invoked when removal would lead to such treatment.
- Article 8 protects the right to respect for private and family life, which can include considerations like family unity, residence, and personal relationships. In immigration cases, interfering with these aspects must be justified and proportionate.

Rule 395C of the Immigration Rules

Rule 395C pertains to the consideration of compassionate circumstances when making removal decisions. It mandates that authorities must consider factors that might weigh against removal, ensuring that such decisions are humane and just.

Per Incuriam

A judgment made per incuriam is one that is given without reference to a relevant statutory provision or precedent, rendering it a mistake of law. In this case, Patel v Secretary of State declared the previous Sapkota decision as per incuriam.

Conclusion

The Okonkwo vs. Secretary of State judgment underscores the stringent application of immigration policies concerning discretionary leave to remain, especially in the context of health-related human rights claims. While the Tribunal dismissed the appellants' appeals, it highlighted the nuanced interplay between policy interpretations and human rights considerations under the ECHR.

Importantly, the judgment delineates the boundaries within which health-based Article 8 claims must operate, emphasizing that length of residence alone does not create an entitlement to remain unless accompanied by additional factors such as undue delay by immigration authorities. This decision serves as a critical reference point for future immigration cases, guiding both legal practitioners and claimants in understanding the complexities of applying humanitarian and compassionate grounds within the UK's immigration framework.

Additionally, the acknowledgment of evolving case law, as seen in subsequent judgments like Akhalu, suggests a dynamic legal landscape where health-based human rights claims may gain traction, provided they are substantiated with comprehensive evidence and align with the established legal principles.