Arshad v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant, a citizen of Pakistan, entered the United Kingdom on a family visit visa valid until January 2009 but overstayed and was encountered working illegally in May 2011. After being served removal papers, he made a human rights application which was refused, and his appeal rights were exhausted in 2011. A subsequent human rights application based on private and family life was refused in a decision dated 3 December 2020. The Appellant appealed this decision to the First-tier Tribunal (Immigration and Asylum Chamber) ("the F-tT"), which allowed the appeal (determination 1). The Secretary of State then appealed to the Upper Tribunal ("the UT"), which set aside and re-made the F-tT's decision (determination 2). The Appellant now appeals the UT’s determination.

Legal Issues Presented

1. Whether the F-tT erred in law by failing to properly consider the impact of the Appellant's unlawful and precarious immigration status on the assessment of proportionality under article 8 of the European Convention on Human Rights (ECHR).
2. Whether the UT erred in law in detecting an error of law in the F-tT’s decision and in its own proportionality assessment when re-making the decision.
3. Whether the Appellant’s relationship with his sister and her children constitutes family life of sufficient weight to outweigh the public interest in immigration control.
4. The proper application and scope of the "little weight" provisions in section 117B(4) and (5) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") in cases involving precarious immigration status.

Arguments of the Parties

Appellant's Arguments

• The F-tT’s factual findings about the Appellant’s relationship with his sister and her children were open to it on the evidence and not perverse.
• The F-tT correctly applied the test for family life and proportionality, including the best interests of the children as a primary consideration.
• The concept of precariousness and the "little weight" provisions in section 117B(4) and (5) do not apply to the Appellant’s family life, which is distinct from private life and does not involve a qualifying partner.
• The UT erred in law by misapplying the precariousness principle and by failing to give adequate reasons in its proportionality assessment.
• The best interests of the children must be a primary consideration and cannot be displaced by the Appellant’s immigration status.

Secretary of State's Arguments

• The F-tT made perverse findings about the nature of the Appellant’s relationship with the children, wrongly characterising it akin to a parental relationship.
• The F-tT materially misdirected itself by attaching significant weight to family and private life formed during the Appellant's unlawful presence in the UK.
• The "little weight" provisions in section 117B(4) and (5) and the broader principle of precariousness should be properly applied in the proportionality assessment.
• The UT correctly identified errors of law in the F-tT’s decision and properly re-made the decision.
• The public interest in maintaining a firm and fair immigration policy outweighs the Appellant’s family life claims, especially as the children’s primary relationship is with their parents.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Uddin v Secretary of State for the Home Department [2020] EWCA Civ 338	Assessment of family life and proportionality in immigration appeals	Referenced by the F-tT in support of the Appellant's close family ties and the impact of removal.
Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31	Definition of family life and its weight in article 8 assessments	Applied to clarify that the Appellant's role was akin to a close uncle, not parental, relationship.
Ghising v Secretary of State for the Home Department [2012] UKUT 160 (IAC)	Consideration of family life with adult children in immigration cases	Mentioned in the context of family life distinctions in the F-tT's reasoning.
Kopf and Liberda v Austria (App no 1598/06) [2012] 1 FCR 526	Recognition of de facto family ties beyond marriage-based relationships	Supported the F-tT's finding that family life can include other close family bonds.
MF (Nigeria) v Secretary of State for the Home Department [2012] UKUT 393 (IAC)	Framework for considering article 8 claims outside Immigration Rules	Guided the F-tT’s two-stage assessment of proportionality and breach of rights.
R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27	Five-step test for assessing article 8 proportionality in immigration decisions	Referenced by the F-tT in assessing whether removal breaches article 8.
Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813	Interpretation of “very significant obstacles” in immigration rules	Quoted by the F-tT regarding obstacles to reintegration in the country of origin.
VW (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 5	Definition of “unjustifiably harsh consequences” in article 8 cases	Used by the F-tT to apply the seriousness test for hardship on removal.
ZH (Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 8	Recognition that unlawful work is common for applicants under long residence rules	Referenced by the F-tT in acknowledging the Appellant’s unlawful work history.
UE (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 975	Public benefit as a factor in proportionality assessments	Considered by the F-tT regarding the Appellant’s potential contribution as a skilled worker.
Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58	Application of section 117B considerations in article 8 proportionality	Cited by the Appellant to argue the F-tT properly weighed private/family life and immigration status.
R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11	Role of precariousness and best interests of children in article 8 cases	Used by the Appellant to support the approach to precarious family life and children’s interests.
Jeunesse v Netherlands (2015) 60 EHRR 17	Precarious family life and the exceptional circumstances test under article 8	Analyzed extensively to explain the balance between immigration control and family life.
Lal v Secretary of State for the Home Department [2019] EWCA Civ 1925	Limits of "little weight" provisions and application of precariousness principle	Central to the debate on whether the "little weight" rule applies outside section 117B.
Zoumbas v Secretary of State for the Home Department [2013] UKSC 74	Best interests of children as a primary consideration	Referenced for the principle that children should not be blamed for parents’ immigration status.
EB (Kosovo) v Secretary of State for the Home Department [2009] UKHL 41	Effect of delay in enforcement on public interest in removal	Considered in assessing the impact of delay on the proportionality balance.
Chikwamba v Secretary of State for the Home Department [2008] UKHL 40	Public interest in removal and immigration control	Referenced in context of public interest weight in removal decisions.

Court's Reasoning and Analysis

The court carefully examined the nature of the Appellant’s family life, recognizing the close emotional bond with his sister and her children, including his role akin to a "third parent". It acknowledged that family life exists but noted the primary parental responsibility lies with the children’s biological parents. The court emphasized the importance of a nuanced understanding of "family life" and "precariousness" in immigration cases, noting that the Appellant’s unlawful and prolonged overstaying since 2009 places his case at the extreme end of the precariousness spectrum.

The court highlighted that the F-tT failed to properly consider the mandatory relevant factor of the Appellant’s unlawful status and the fact that the family relationships were formed or developed during this unlawful presence. This omission constituted an error of law. The UT correctly identified this error and re-made the decision, applying the principle that less weight is to be given to family life established during unlawful or precarious immigration status.

The court found that the UT did treat the children’s best interests as a primary consideration, but reasonably concluded that the impact of the Appellant’s removal was not dispositive, given the children’s primary relationship with their parents. The court accepted the UT’s assessment that the delay in enforcement by the Secretary of State did not significantly reduce the public interest in removal.

The court rejected the Appellant’s argument that the "little weight" provisions in section 117B(4) and (5) apply to his family life, confirming that those provisions relate to private life and qualifying partners and are not exhaustive of the factors relevant to proportionality. It emphasized that the principle of precariousness remains relevant beyond the statutory provisions and must be considered in the article 8 assessment.

The court concluded that the UT’s re-made decision was legally sound and its proportionality assessment adequate, including a proper balancing of the public interest in immigration control against the Appellant’s family life and the children’s best interests.

Holding and Implications

The court DISMISSED the Appellant’s appeal.

The decision upholds the UT’s determination that the F-tT erred in law by failing to take into account the Appellant’s unlawful and precarious immigration status in its proportionality assessment under article 8. The court confirmed that family life formed or developed during unlawful presence is a mandatory relevant consideration and that the public interest in immigration control can outweigh such family life except in exceptional circumstances.

The ruling does not establish new precedent but reinforces existing principles concerning the weight to be given to family life formed in precarious immigration circumstances and the proper application of statutory provisions and case law in article 8 assessments. The direct effect is the affirmation of the lawfulness of the UT’s decision to dismiss the Appellant’s appeal and uphold the removal decision.