Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58

Ms Rhuppiah, a Tanzanian national, challenged her removal from the UK under article 8 ECHR. The Supreme Court interpreted 'precarious' immigration status in section 117B(5) of the 2002 Act as covering anyone with leave short of indefinite leave to remain.

Facts

Ms Rhuppiah, a Tanzanian national, entered the UK in 1997 with three months’ leave as a student. She was granted further student leave on 12 occasions until November 2009, six of which were applied for after previous leave had expired due to errors by her college. Her 2009 application for indefinite leave to remain on the basis of ten years’ continuous lawful residence failed because her residence had not always been lawful, and her 2012 application under the 14-year rule was made on the wrong form, by which time the relevant rule had been deleted. She has lived since 2001 with Ms Charles, a close friend who suffers from severe ulcerative colitis, providing her with extensive physical and emotional care in exchange for board and lodging. The Home Secretary determined to remove her in June 2013. By February 2018, having completed 20 years’ continuous residence, she was granted 30 months’ leave under paragraph 276ADE(1) of the Immigration Rules, rendering the appeal academic but of general importance.

Issues

The primary question was the meaning of the word ‘precarious’ in section 117B(5) of the Nationality, Immigration and Asylum Act 2002, which provides that little weight should be given to a private life established when a person’s immigration status is precarious. A secondary issue was the meaning of ‘financially independent’ in section 117B(3).

Arguments

Ms Rhuppiah argued that her status had not been precarious because, with long periods of student leave, she had a reasonable hope or potential path to permanent settlement. She contrasted her position with asylum-seekers and visitors, contending that hope of remaining did not invalidate her stated intention to leave at the end of her studies. On section 117B(3), she contended that ‘financially independent’ meant absence of dependence upon the state, not upon third parties.

The Home Secretary contended that all leave short of indefinite leave to remain gives rise to a precarious status. On section 117B(3), the Home Secretary (having changed his position following R (MM (Lebanon))) agreed with Ms Rhuppiah’s interpretation, subject to the support being credible and reliable.

Judgment

Meaning of ‘precarious’

Lord Wilson, giving judgment for a unanimous court, traced the use of ‘precarious’ through ECtHR jurisprudence including Mitchell v United Kingdom, Useinov v Netherlands, Nnyanzi v United Kingdom, Butt v Norway and the Grand Chamber decision in Jeunesse v Netherlands. The Strasbourg case law draws a distinction between persons granted permission pending determination of applications (precarious) and ‘settled migrants’ who have been granted a formal right of residence which can be withdrawn — meaning, in particular, indefinite leave to remain.

The Court endorsed the bright-line approach taken by the Upper Tribunal in AM (S117B) Malawi, which held that a person’s immigration status is precarious for section 117B(5) purposes if their continued presence depends on a further grant of leave. The Court rejected the more evaluative approach provisionally favoured by Sales LJ in the Court of Appeal, which would have looked at the overall circumstances. Lord Wilson concluded:

The answer to the primary question posed by the present appeal is therefore that everyone who, not being a UK citizen, is present in the UK and who has leave to reside here other than to do so indefinitely has a precarious immigration status for the purposes of section 117B(5).

Accordingly, Judge Blundell had been correct to find Ms Rhuppiah’s private life was established when her immigration status was precarious. The Court also agreed that section 117B(5) does not extend to those unlawfully present, since Parliament drew a clear distinction between unlawful presence (subsection 4) and precarious status (subsection 5).

Flexibility through section 117A(2)(a)

The Court held that the necessary flexibility to ensure compatibility with article 8 lies in section 117A(2)(a), which directs courts to ‘have regard’ to the listed considerations. The ‘little weight’ provision contains a small inbuilt flexibility, and section 117A(2)(a) enables exceptional cases to succeed despite section 117B(5). Lord Wilson cited Sales LJ’s formulation that generalised normative guidance may be overridden by particularly strong features of the private life in question.

Section 117B(3): financial independence

The Court held that ‘financially independent’ in section 117B(3) means absence of financial dependence upon the state, not upon third parties, provided third-party support is credible and reliable. Judge Blundell had erred in concluding Ms Rhuppiah was not financially independent because she was supported by her father and Ms Charles. The Court further confirmed that sections 117B(2) and (3) do not operate as positive factors in favour of an applicant; they identify public interest factors that may weigh against a claim where the applicant cannot speak English or is not financially independent.

Implications

The decision provides a clear, bright-line definition of ‘precarious’ immigration status: anyone with leave short of indefinite leave to remain falls within section 117B(5). This significantly narrows the scope for arguing that limited leave-holders, including students with long lawful presence and a hope of settlement, should be treated as having a non-precarious status. The decision will assist tribunals and decision-makers by removing the need to engage with degrees of precariousness.

However, the rigour of the rule is mitigated by section 117A(2)(a), which preserves a limited flexibility allowing exceptional cases with particularly strong private-life features to succeed. The judgment also clarifies, in the applicant’s favour, that ‘financially independent’ in section 117B(3) refers to independence from the state, accommodating credible and reliable third-party support — an important corrective for practitioners advising clients reliant on family or friends. The Court left open whether indefinite leave obtained by deception or vitiated by serious criminality might still amount to a precarious status, as the AM tribunal had suggested. The decision is significant for immigration practitioners, the Home Office, and applicants relying on article 8 outside the Immigration Rules, in defining the statutory framework that structures proportionality assessments.

Verdict: The Supreme Court allowed Ms Rhuppiah’s appeal and set aside Judge Blundell’s order, on the basis that he had erred in his application of section 117B(3) regarding financial independence. However, the Court did not remit the matter for fresh determination because the appeal had become academic following the Home Secretary’s grant of 30 months’ leave to remain on 9 February 2018. The Court upheld the conclusion that Ms Rhuppiah’s immigration status had been precarious for the purposes of section 117B(5).

Source: Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58