Case Law Update May 2020 – s117b of the Nationality Immigration Asylum Act 2002

Speaker: Amanda Jones
Chambers: Great James Street Chambers

Two new Court of Appeal cases

Lal v The Secretary of State for the Home Department [2019] EWCA Civ 1925
‘Insurmountable obstacles to family member continuing outside the UK’ under Appendix FM
Article 8 grounds outside the provisions of Appendix FM.
GM (Sri Lanka) v The Secretary of State for the Home Department (Rev 1) [2019] EWCA Civ 1630
Exceptional circumstances

Lal v The Secretary of State for the Home Department
[2019] EWCA Civ 1925
Policy by the Secretary of State was very similar.
Section 117B(4) and (5), concerning family and private life established when immigration status was precarious or unlawful.
Upper Tribunal Decision
S117B Errors and Approach
Section 117B(4) wrongly applied.
This section refers to relationships formed by a person when the person is in the UK unlawfully.
Mrs Lal was never in the UK lawfully.

Section 117B(5)
Little weight to be given to private life when a person’s immigration status is precarious
In the Court of Appeal, Secretary of State relied upon the cases of TJ (Pakistan), Rajendran, and Jeunesse v The Netherlands.

Rhuppiah.‘precariousness’ was a bright-line interpretation, but it was entirely apparent to the Court of Appeal that the differences between Section 117B(4) and (5) were different

GM (Sri Lanka) v The Secretary of State for the Home
Department (Rev 1) [2019] EWCA Civ 1630
Those principles are that:
Section 117B must be construed so as to be consistent with Article 8
National authorities have a margin of appreciation when setting the weighting to be applied to the proportionality assessment
3. A fair balance has to be struck between the competing public and private interests outside the Immigration Rules and this is a proportionality test
The circumstances of the individual case are crucial to the proportionality test
There is a requirement for proper evidence. Mere assertion is insufficient.
There is no closed list of relevant factors to be considered in a proportionality assessment. It is a fact-sensitive exercise. In practise there might be a relatively well trodden list of factors which tend to arise, but it is not an exclusive list.

Preparing Article 8 Cases Considering Appendix FM and Article 8 Outside the Rules

A relationship formed when the non-UK partner is in the UK unlawfully will be given little weight under s.117B(4).

Witness Statements
1. Insurmountable obstacles
2. Don’t include pleading or submissions
3. Do include facts to base pleadings on
4. Often focus on the partner’s obstacles, not only the appellant

You can contact Amanda Jones via her clerks on
clerks@greatjamesstreet.co.uk

© Copyright 2020 Law Friends Society. All Rights Reserved