Human rights in immigration appeals
Immigration appeal lawyers have been waiting for the decision in Lal v Secretary of State for the Home Department [2019] EWCA Civ 1925. Appealing a Home Office decision isn’t easy as the case of Lal demonstrates but the Lal case offers guidance for Immigration appeal lawyers and those contemplating appealing a visa decision.
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Human Rights appeal of Cathrine Lal
For Human Rights and Immigration appeal lawyers the case of Cathrine Lal is about whether refusing the partner of a British citizen leave to remain in the United Kingdom violates their human right to respect for family life.
To understand the decisions of the First tier tribunal and the Upper tribunal you have to understand the background to the appeal. Now age 35 and an Indian national, Ms Lal came to the UK at age 27 on a student visa. Her student visa was extended until April 2015. Four months prior to her student visa expiry Ms Lal married a British citizen, Keith Wilmshurst, now age 73.
Ms Lal applied for leave to remain in the UK because of her relationship with Mr Wilmshurst. The Home Office refused the application. The refusal letter said the Home Office did not believe Ms Lal’s relationship with Mr Wilmshurst was ‘genuine and subsisting’ or that the couple intended to permanently live together in the UK.
Appendix FM to the Immigration Rules
An application for leave to remain in the UK on the basis of family life with a person who is a British citizen is governed by the guidance in Appendix FM to the Immigration Rules.
The Home Office said that Ms Lal was not eligible to apply for UK settlement under the five or ten year routes because the eligibility requirement for both says that a relationship must be ‘genuine and subsisting’. The Home Office also said Ms Lal's application did not raise any exceptional circumstances which warranted going outside the Immigration Rules and granting her leave to remain in the UK on article 8 Human Rights grounds.
Appeal to the First tier Tribunal
Ms Lal appealed the Home Office decision to the First tier Tribunal. Her only right of appeal was on Human Rights grounds, namely that to require her to leave the UK would be unlawful under section 6 of the Human Rights Act 1998.
Ms Lal and her husband gave evidence to the First tier tribunal and said that if the Immigration appeal was refused and Ms Lal was forced to return to India it would place insurmountable obstacles to family life as it would be impossible for her husband to move to Ms Lal’s home country because of his sensitivity to heat.
The First tier tribunal decided the couple were in a genuine relationship and there were insurmountable obstacles to family life continuing outside the UK requirements of the Immigration Rules because of the husband's difficulties in coping in hot climates. The Home Office appealed to the Upper tribunal.
The Home Office appeal to the Upper tribunal
The Upper tribunal decided the couple were in a genuine relationship but held that the First tribunal had not carried out an objective assessment of the ‘insurmountable obstacles’ test and the husband's ability to withstand the heat in India and had instead accepted the husband's subjective views.
The Upper tribunal concluded that on an objective assessment heat was not an insurmountable obstacle because heat does not amount to ‘serious hardship’. The Upper tribunal granted the Home Office Immigration appeal and Ms Lal appealed to the Court of Appeal.
Ms Lal’s appeal to the Court of Appeal
The Court of Appeal considered:
• Whether the ‘insurmountable obstacles to family life continuing outside the UK’ test was a subjective or objective test; and
• Sections 117A- 117D of the Nationality, Immigration and Asylum Act 2002 says if an Immigration tribunal has to decide whether a decision breaches article 8 Human Rights (and is therefore unlawful under section 6 of the Human Rights Act 1998) the tribunal has to consider whether interference with a person's right to respect for private and family life is justified under article 8(2), having regard to the considerations listed in section 117B and in particular in Ms Lal’s case that ‘ Little weight should be given to a private life established by a person at a time when the person's Immigration status is precarious’.
Appealing insurmountable obstacles test to family life outside the UK
The Court of Appeal said when looking at whether something was an "insurmountable obstacles" in Appendix FM. the logical approach is:
Step Approach to insurmountable obstacles
1: Decide whether the obstacle to continuing family life outside the UK amounts to a very significant difficulty; and if it does move to step 2
2: Is the difficulty one which makes it impossible for the applicant and their partner to continue family life together outside the UK; and if not, move to step 3
3: Decide whether, taking account any steps which could reasonably be taken to avoid or mitigate the difficulty, it would nevertheless entail very serious hardship for the applicant or their partner.
Applying the insurmountable obstacles test in family life appeals
The Court of Appeal said when applying the insurmountable obstacles test the Home Office should have regard to the particular characteristics and circumstances of the individual applicant and their partner. However, just because someone perceives something (such as heat) to be insurmountable is too subjective an approach.
The Court of Appeal said insurmountable means ‘very serious hardship’ and in Mr Wilmshurst’s case the facts and practical questions (such as average temperatures and availability of air conditioning) should have been addressed to see if the heat issue amounted to inconvenience or ‘very serious hardship’.
In addition, the Upper Tribunal should have assessed the cumulative impact of the difficulties which Mr Wilmshurst would face if required to move to India (his ties to the UK and his family) and ask whether, taken together with heat issues, they would entail very serious hardship for him. The Court of Appeal concluded the Upper Tribunal was wrong to decide that there was no ‘insurmountable obstacle’ on the information available to it.
Exceptional circumstances and Human Rights
The Court of Appeal said the Upper tribunal decided Ms Lal did not meet the ‘exceptional circumstances’ criteria for a Human Rights claim because the judge thought he had to attach little weight to the couple's relationship when assessing the Human Rights case because the relationship was entered into at a time when the claimant's Immigration status was ‘precarious’.
Relevance of precarious Immigration status in Human Rights cases
The Court of Appeal said section 117B does not say that little weight must be given to a relationship formed with a qualifying partner when a person’s Immigration status is precarious. The law is different if a relationship was formed when a person’s Immigration status is unlawful but that was not relevant in Ms Lal’s case because she was lawfully in the UK on a student visa.
The Court of Appeal said an Immigration tribunal should give such weight to a relationship as is ‘appropriate’. The weight attributed to the relationship may therefore partially depend on the degree of Immigration precariousness that an applicant is in. For example, an overstayer will be looked at differently to an applicant that is in the UK lawfully but nonetheless may be edging towards the expiry of their entry clearance. The court was clear that it is unreasonable to attach equal weight to family relationships and that this was the wrong approach in law.
Appeals and material change in circumstances
The Court of Appeal did not remit the case of Ms Lal for re-hearing by the Immigration tribunal. Instead, as a result of a material change in circumstances, the Home Office was asked to consider the case afresh to look at the impact of the birth of Ms Lal’s daughter. The child has British Citizenship and is therefore a qualifying child for the purposes of Appendix FM to the Immigration Rules. The arrival of the child means that Ms Lal no longer has to meet the insurmountable obstacles test.
Lessons from the Lal case
Whilst some would say that the Court of Appeal decision reinforces what Immigration appeal lawyers knew about the insurmountable obstacles test and the treatment of Human Rights claims the case emphasises the need for careful case preparation together with the need to robustly examine Home Office decisions and, where appropriate, challenge them.