GM (Sri Lanka) v The Secretary of State for the Home Department

Factual and Procedural Background

The Appellant, a national of Sri Lanka, arrived in the United Kingdom as a student in January 2010. She married her husband, who had limited leave to remain in the UK, in August 2012. The couple had two children born in the UK. The Appellant's leave to remain expired in May 2013. She claimed asylum and advanced a human rights claim under Article 8 in September 2014. The Secretary of State refused her application in February 2015, rejecting both asylum and human rights claims. The First-Tier Tribunal (FTT) upheld the refusal in August 2015, and the Upper Tribunal (UT) dismissed the subsequent appeal in December 2015.

After these decisions, the Secretary of State granted indefinite leave to remain (ILR) to the Appellant's husband and children in August 2018, conferring settled status on them. The Appellant’s application was not reconsidered in light of this material change. The Appellant appealed against the dismissal of her appeal by the UT, challenging the approach taken to Article 8 family life rights in light of subsequent Supreme Court rulings clarifying the applicable legal tests.

Legal Issues Presented

1. Whether the FTT correctly applied the proportionality test under Article 8 ECHR in assessing the Appellant's human rights claim outside the Immigration Rules.
2. The relevance and application of Section 117B(4) and (5) of the Nationality, Immigration and Asylum Act 2002 concerning the weight to be given to family life established during precarious immigration status.
3. The significance of the nature of the rights held by family members (husband and children) who would have to leave the UK to retain family life abroad, particularly regarding their immigration status and pathway to settled status.
4. The relevance of the family’s awareness from the outset of the precariousness of their family life in the UK.
5. The paramountcy and proper assessment of the best interests of the children involved.
6. The correct approach to assessing the existence of insurmountable obstacles to return and the application of proportionality versus mere capability or ability tests.
7. The role and limited utility of comparator cases in Article 8 assessments, given their fact-sensitive nature.

Arguments of the Parties

Appellant's Arguments

• The FTT failed to properly consider the nature of the rights held by the husband and children, including their legacy discretionary leave to remain and pathway to settled status, which were relevant to the proportionality assessment.
• The FTT wrongly applied the "little weight" provisions of Section 117B(4) and (5) to family life, which do not apply to family life created during lawful but precarious immigration status.
• The Judge did not analyze the family’s awareness of the precariousness of their family life from the correct perspective, ignoring the pathway to settled status of the husband at the time of marriage.
• The FTT erred in assessing the best interests of the children by assuming the husband would choose to leave the UK, despite unchallenged evidence that he would not, thereby failing to properly consider the risk of family separation.
• The Judge applied an overly mechanistic test focusing on the husband's ability or capability to return to Sri Lanka rather than a broader proportionality and reasonableness assessment.
• Comparator cases cited by the Respondent were materially different and predated important clarifications; thus, the FTT should have focused on the specific facts and proper weighing of relevant factors.

Respondent's Arguments

• The Secretary of State did not dispute the need for a two-stage process considering both the original evidence and the changed circumstances but reserved position on relief.
• The Respondent argued that even considering the later grant of ILR to the husband and children, the Appellant could not succeed on the appeal.
• The Respondent relied on comparator cases, particularly the TZ case, to support the dismissal of the appeal.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court found that the FTT erred in its approach to the Article 8 family life rights claim by failing to apply the clarified legal principles set out in recent Supreme Court judgments. The FTT did not properly consider the nature and weight of the immigration status of the husband and children, including their legacy discretionary leave and pathway to settled status, which was a relevant factor in the proportionality assessment.

The Court held that the FTT wrongly applied the "little weight" provisions of Section 117B(4) and (5) to family life, despite these provisions being applicable only to private life or relationships formed unlawfully, not to family life established during lawful but precarious residence.

The FTT also failed to assess the family's awareness of the precariousness of their family life from the correct perspective, neglecting the husband's pathway to settled status and its impact on the family's expectations and rights.

In assessing the best interests of the children, the FTT wrongly assumed the husband would choose to leave the UK, ignoring credible evidence that he would not, thereby failing to properly consider the risk of family separation and the harm to the children.

The Court identified that the FTT applied a mechanistic test focusing on the husband's ability to return rather than conducting a proportionality and reasonableness assessment balancing public interest and private family life rights.

The Court emphasized the fact-sensitive nature of Article 8 claims and the limited utility of comparator cases, noting the material differences in circumstances between the instant case and cited precedents.

Given the material change in circumstances—namely, the grant of settled status to the husband and children—the Court held that the Secretary of State must reconsider the Appellant's human rights claim afresh, taking into account the updated facts and legal principles.

Holding and Implications

The Court ALLOWED THE APPEAL, set aside the decisions of the First-Tier Tribunal, the Upper Tribunal, and the Secretary of State's prior decision.

The Court directed that the Secretary of State, pursuant to Section 87 of the Nationality, Immigration and Asylum Act 2002, reconsider the Appellant's human rights claim under Article 8 ECHR in light of the altered circumstances, including the settled status of the husband and children.

This decision does not establish new legal precedent beyond reaffirming the application of existing Supreme Court principles but directly affects the parties by requiring a fresh administrative consideration of the Appellant's claim that reflects current facts and legal standards.