Treebhawon and Others (NIAA 2002 Part 5A - compelling circumstances test : Mauritius)

Factual and Procedural Background

This opinion concerns conjoined appeals involving a family unit of five foreign nationals from Mauritius: a father and his four children. The father entered the United Kingdom unlawfully in 2003, and the children entered the UK at various times between 2007 and 2011. The family’s human rights application was refused by the Secretary of State for the Home Department in 2013 and again in 2014. The family appealed to the First-tier Tribunal (FtT), which allowed their appeals under the Immigration Rules and Article 8 of the European Convention on Human Rights (ECHR), distinguishing between the oldest child’s appeal under the Immigration Rules and the other family members’ appeals outwith the Rules. The Secretary of State appealed to the Upper Tribunal on grounds of error of law related to the application of the Immigration Rules and statutory provisions governing proportionality under Article 8 ECHR.

Legal Issues Presented

1. Whether the oldest child satisfied the seven-year continuous residence requirement under paragraph 276 ADE(1)(vi) of the Immigration Rules at the date of application, and whether the FtT erred in allowing her appeal under the Rules despite not meeting this requirement.
2. Whether the FtT erred in treating section 117B(6) of the Nationality, Immigration and Asylum Act 2002 as determinative of the public interest question, specifically the proportionality assessment under Article 8(2) ECHR, without applying other public interest provisions in section 117B.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 450	Binding authority on section 117C(5) of the 2002 Act.	The court acknowledged this as binding precedent, disapproving part of the Tribunal’s earlier interpretation.
MA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 705	Binding authority on section 117B(6) of the 2002 Act.	The court recognized competing interpretations and considered this binding concerning section 117B(6).
Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803	Support for the approach to section 117B(4) and (5) as instructions to courts on weight to be given.	Used to confirm the correct approach to statutory instructions on weighting factors in proportionality assessments.
R (Amin) v Secretary of State for the Home Department [2014] EWHC 2322 (Admin)	Clarification that Immigration Rules do not constitute a comprehensive Article 8 code.	Supported the principle that Article 8 claims may succeed inside or outside the Rules.
Haleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558	Test of "compelling circumstances" for claims outside the Immigration Rules.	Referenced in framing the standard for claims outwith the Rules.
MM (Lebanon) v Secretary of State for the Home Department [2014] EWCA Civ 985	Disapproval of an intermediate hurdle before considering Article 8 claims outside the Rules.	Clarified procedural approach to Article 8 claims outside the Rules.
Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60	Tribunals must give considerable weight to Secretary of State's policy statements in Immigration Rules.	Applied in evaluating the "very significant obstacles" test under paragraph 276 ADE(1)(vi).
Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813	Broad concept of "integration" under Immigration Rules.	Used to interpret the integration limb of the "very significant obstacles" test.
MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192	Article 8 test in deportation context.	Referenced regarding proportionality assessment outside Immigration Rules.
Tesco Stores v Secretary of State for the Environment and Others [1995] 1 WLR 759	Wednesbury principle for judicial review of decision-making.	Applied to explain the statutory obligation to "have regard to" matters under sections 117A and 117B.
Bossade (Sections 117A-D: Inter-relationship with Rules) [2015] UKUT 415 (IAC)	Relationship between Immigration Rules and Part 5A of the 2002 Act.	Explained the sequence of considering claims under the Rules before applying Part 5A.
Forman (Sections 117A - C considerations) [2015] UKUT 412 (IAC)	Comprehensive analysis of sections 117A and 117B.	Established that sections 117A and 117B apply in every Article 8 proportionality determination.
AM (Section 117B) Malawi [2015] UKUT 260 (IAC)	Interpretation of section 117B.	Supported the approach to public interest considerations under the 2002 Act.
Deelah and Others (section 117B - ambit) [2015] UKUT 515 (IAC)	Scope and application of section 117B.	Clarified the statutory duty to give little weight to certain factors and the multi-layered nature of the public interest.
MK (Sierra Leone) [2015] UKUT 223	Interpretation of "unduly harsh" test.	Applied analogously to the "very significant obstacles" test under the Immigration Rules.

Court's Reasoning and Analysis

The court divided its judgment into two parts: an error of law hearing and a remaking hearing. It first examined the Immigration Rules, specifically paragraph 276 ADE(1)(vi), which requires a minimum of seven years continuous residence for private life claims. The FtT had erred by allowing the oldest child's appeal under the Rules despite her not meeting this residence requirement at the date of application. This error invalidated the FtT's decision to allow the other family members' appeals outwith the Rules, as these decisions were inextricably linked.

The court then analyzed section 117B of the Nationality, Immigration and Asylum Act 2002, focusing on subsection (6), which states that if a person is not liable to deportation, has a genuine parental relationship with a qualifying child, and it would not be reasonable to expect the child to leave the UK, then the public interest does not require removal of that person. The court distinguished this provision from others in section 117B, noting that subsections (4) and (5), which command "little weight" be given to certain private life factors, are not parliamentary statements of public interest but instructions on weighting in proportionality assessments.

The court concluded that section 117B(6) operates as an unqualified statutory instruction that, if its conditions are met, the public interest does not require removal, effectively displacing other public interest considerations in subsections (1) to (3). The court declined to decide on the interplay between subsections (4), (5), and (6) due to lack of argument and permission scope.

The court confirmed that the FtT committed no error in applying section 117B(6) to the family members' claims outside the Rules. However, the first ground of appeal succeeded, requiring the setting aside of the FtT decision and remaking of the decision by the Upper Tribunal.

In the remaking, the court considered the family’s circumstances, including their ties to Mauritius, available welfare benefits there, the father’s health and employment prospects, and the children’s education and resilience. The court found that the father’s case did not satisfy the "very significant obstacles" test under the Immigration Rules because he is a national returning to his country of birth with cultural and linguistic ties and a reasonable prospect of integration.

Applying the Article 8 proportionality test, the court weighed the public interest in effective immigration control against the family’s private and family life interference. Despite acknowledging the family’s challenges upon return, the court concluded that removal would not be disproportionate. The court noted that removal during the school year would be undesirable but did not preclude it ultimately.

Holding and Implications

The court’s final ruling is that the first ground of appeal succeeds and the FtT’s decision is set aside. The Upper Tribunal remakes the decision by dismissing the family’s appeals against removal.

DISPOSED OF

The direct effect is that the family’s appeals fail and removal from the United Kingdom is lawful. The decision does not establish new legal precedent but clarifies the application of section 117B(6) of the 2002 Act and the relationship between the Immigration Rules and Part 5A statutory provisions in Article 8 proportionality assessments.