Factual and Procedural Background
The Respondent decided on 6 June 2013 to remove the Appellant, a Tanzanian national resident in the United Kingdom since 1997, on the ground that her immigration leave had expired and subsequent applications were refused. The Appellant challenged removal under Article 8 of the European Convention on Human Rights, relying on the private life she had built in the UK and, in particular, her long-standing role as carer for a seriously ill Friend.
In August 2014 Judge Blundell of the First-tier Tribunal dismissed the Article 8 appeal, finding that the Appellant’s private life attracted “little weight” because it was established while her immigration status was “precarious” within the meaning of section 117B(5) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The Upper Tribunal and the Court of Appeal upheld that decision.
On 9 February 2018—after more than twenty years’ residence—the Respondent granted the Appellant 30-months’ leave to remain under paragraph 276ADE of the Immigration Rules, making the live removal dispute academic. Nevertheless, the Supreme Court proceeded with the appeal to provide authoritative guidance on the statutory meaning of “precarious” and to correct an error concerning section 117B(3).
Legal Issues Presented
- The proper construction of “precarious” in section 117B(5) of the 2002 Act: does it apply to all migrants with leave short of indefinite leave to remain, or only to those with no realistic prospect of settlement?
- The correct interpretation of “financially independent” in section 117B(3): does it mean independence from the state alone, or from both the state and private third-party support?
- Whether the First-tier Tribunal’s misdirection on section 117B(3) was material to its proportionality assessment under Article 8.
Arguments of the Parties
Appellant's Arguments
- “Precarious” should be confined to periods of unlawful stay or short-term leave where no reasonable path to settlement existed; her extended student leave gave her a “reasonable hope” of settlement, therefore her private life should not be discounted.
- “Financially independent” in section 117B(3) refers only to independence from public funds; private support from family or friends should not count against her.
- The Tribunal failed to exercise the flexibility preserved by section 117A(2)(a) when balancing the Article 8 claim.
Respondent's Arguments
- Any leave short of indefinite leave to remain renders immigration status “precarious” for section 117B(5) purposes; thus little weight must be given to the Appellant’s private life.
- At first instance and in the Court of Appeal, the Respondent contended that reliance on private third-party funds meant the Appellant was not “financially independent.” In the Supreme Court the Respondent accepted that view was incorrect but maintained that the error was immaterial.
- Even applying flexibility under section 117A(2)(a), the strength of immigration control outweighed interference with the Appellant’s private life.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|
| Mitchell v United Kingdom (ECtHR 1998) |
Family life created when immigration position is known to be uncertain is given little weight absent exceptional circumstances. |
Source of the “precariousness” concept later imported into section 117B(5). |
| Rodrigues da Silva & Hoogkamer v Netherlands (ECtHR 2006) |
Extension of Mitchell principle beyond marriage to wider family life. |
Used to trace development of “precarious” jurisprudence. |
| Useinov v Netherlands (ECtHR 2006) |
Distinction between temporary tolerated stay and settled residence. |
Supports view that only indefinite leave removes precariousness. |
| Nnyanzi v United Kingdom (ECtHR 2008) |
Reaffirmed temporary leave as precarious status. |
Cited to illustrate settled vs. precarious distinction. |
| Butt v Norway (ECtHR 2012) |
Even status originally granted can be precarious if obtained fraudulently or later withdrawn. |
Referenced in discussion of whether ILR might still become precarious. |
| Jeunesse v Netherlands (ECtHR Grand Chamber 2015) |
“Settled migrants” are those with formally granted residence; temporary toleration remains precarious. |
Primary external authority supporting a bright-line approach. |
| AM (S117B) Malawi [2015] UKUT 260 (IAC) |
Interprets “precarious” as applying to all limited leave short of ILR. |
Endorsed by the Supreme Court as the correct statutory construction. |
| Patel v Secretary of State [2013] UKSC 72 |
“Near-miss” under the Rules gives no advantage. |
Cited in factual narrative to explain earlier failed applications. |
| R (Agyarko) v Secretary of State [2017] UKSC 11 |
Weight of Rules in out-of-rules Article 8 assessments. |
Provides framework for proportionality under Article 8. |
| R (R) v Chief Constable of Greater Manchester Police [2018] UKSC 47 |
Appellate approach to findings of fact. |
Guides Supreme Court’s review of Tribunal’s conclusion. |
| R (Nagre) v Secretary of State [2013] EWHC 720 |
Application of “precarious” concept in domestic courts pre-statute. |
Referenced to show consistency with ECtHR approach. |
| Ahmed v Secretary of State [2014] EWHC 300 |
Degrees of precariousness outside section 117B. |
Supreme Court notes its decision eliminates need for such gradations. |
| Secretary of State v Thierno Barry [2018] EWCA Civ 790 |
Discussion of “not entirely precarious” status. |
Cited similarly to Ahmed. |
| R (MM (Lebanon)) v Secretary of State [2017] UKSC 10 |
Permissibility of third-party financial support under Article 8. |
Led Respondent to concede error on the meaning of “financially independent.” |
Court's Reasoning and Analysis
1. Parliament deliberately imported the ECtHR term “precarious” into section 117B(5) but applied it to an individual’s immigration status rather than to family life. Reviewing ECtHR case law and domestic authority, the Court concluded that the decisive feature is whether further leave is required; anyone without indefinite leave to remain lacks settled status.
2. The specialist Immigration and Asylum Chamber in AM (Malawi) had already adopted this bright-line approach. The Supreme Court endorsed that interpretation, rejecting the Court of Appeal’s more nuanced, circumstance-based reading as inconsistent with the statutory scheme and with the goal of predictability.
3. Consequently, the Appellant’s extensive history of limited student leave meant her private life was formed while her status was “precarious,” and section 117B(5) mandated that “little weight” be attached to it—subject, however, to the flexibility preserved by section 117A(2)(a).
4. Turning to section 117B(3), the Court found the lower courts had erred. “Financially independent” refers solely to independence from public funds; credible, reliable support from private sources does not engage the public-interest consideration. The First-tier Tribunal and Court of Appeal therefore wrongly treated the Appellant’s reliance on family and Friend as a factor against her.
5. That misdirection might have influenced the proportionality exercise; therefore the First-tier Tribunal’s decision could not stand, even though the main “precarious” finding was correct.
Holding and Implications
APPEAL ALLOWED. The order of the First-tier Tribunal is set aside and will not be remitted for rehearing.
Implications: The Court establishes a clear rule that any migrant who is not a UK citizen and who holds leave short of indefinite leave to remain has a “precarious” status for section 117B(5) purposes. Decision-makers no longer need to grade degrees of precariousness. Additionally, “financial independence” under section 117B(3) concerns reliance on the state, not on private benefactors. While the ruling does not create new rights for the Appellant (who already holds limited leave), it provides nationally binding guidance for future Article 8 assessments.