A person’s immigration status is fundamental in providing security and wellbeing for not only the person involved, but also for those in a relationship with him or her. That relationship may constitute being a qualifying partner or a qualifying child to that particular person.
The decision reached by an immigration judge or (Home Office officer) regarding a person’s status in the UK can have far reaching consequences and may result in the removal of more than the person concerned; partners and children may also be removed. The interpretation of words such as “precarious” can define and, in some cases, destroy lives.
Parliament introduced new primary legislation in the Nationality, Immigration and Asylum Act 2002 (as amended) and brought into force on 28 July 2014 by virtue of, inter alia, Section 19 of the Immigration Act 2014 (“IA 2014”) in an attempt to provide clearer guidance on how to incorporate Article 8 of the ECHR into UK Immigration law.
Section 117B Article 8: public interest considerations applicable in all cases states, inter alia that:
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the
United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.
THE LEGAL POSITION
The case of AM(S 117B) Malawi  UKUT 0260 (IAC) has provided binding guidelines on the approach the courts must follow when dealing with section 117B brought into effect by the Act.
In the abovementioned case, the appellant was a Malawi national who was granted entry clearance to the UK in September 2006 as a student. There followed successive decisions to vary his leave to remain, but this leave eventually expired in December 2012. During the time that he was granted leave to remain, his wife and daughter were granted entry clearance to join him as dependants. In 2011, his second daughter was born in the UK. He lodged an application for asylum in 2013, after a period of overstaying.
An appeal against a decision to refuse asylum was dismissed by the First-tier Tribunal but permission was granted to appeal to the Upper Tribunal. The Upper Tribunal held that the private lives of all members of the Appellant’s family were established during a period when their immigration status was precarious “in that it was of a temporary nature dependent upon the Appellant’s right to remain in the United Kingdom as a student”.
Section 117B does not define the term ”precarious”. The significance of this case is the meaning that the Upper Tribunal has attributed to said term. In particular it was ruled that “those who at any given date held a precarious immigration status must have held at that date an otherwise lawful grant of leave to enter or to remain. A person’s immigration status is “precarious” if their continued presence in the UK will be dependent upon their obtaining a further grant of leave”.
The Upper Tribunal continued by stating that “In some circumstances it may also be that even a person with indefinite leave to remain, or a person who has obtained citizenship, enjoys a status that is “precarious” either because that status is revocable by the Secretary of State as a result of their deception, or because of their criminal conduct. In such circumstances the person will be well aware that he has imperilled his status and cannot viably claim thereafter that his status is other than precarious”
In the case of Deelah and others (section 117B – ambit)  UKUT 00515 (IAC) the headnote states at:
ii) Section 117B(4) and (5) of the 2002 Act, which instruct Judges to attribute “little weight” to the considerations specified therein, do not give rise to a constitutionally impermissible encroachment on the independent adjudicative function of the judiciary.
(iii) A private life “established”, in the wording and in the context of section 117B(4) and (5) of the 2002 Act, is not to be construed and confined to the initiation, or creation, of the private life in question and not its continuation or development.
(iv) The adjective “precarious” in section 117B(5) of the 2002 Act does not contemplate only, and is not restricted to, temporary admission to the United Kingdom or a grant of leave to remain in a category which permits no expectation of a further grant.
These judgements leave the reader in no doubt about the definition of “precarious”.
Anybody who has been granted a defined period of leave to enter or to remain in the UK therefore holds an immigration status that is precarious; a status that is lawful but requires further grants of leave. This effectively envelops everybody with an immigration status that has been determined by the Home Office and permits little weight to be attached to the private life of anybody caught within the meaning of precarious.
A precarious immigration status can include circumstances in which a person has obtained citizenship, specifically because citizenship itself is revocable, through deception or criminal activity, for example.
The overall effect of the amendments to the Immigration Act 2002 through the 2014 Immigration Act and the ruling from the cases discussed above has been to grant sweeping powers to the courts to deny applicants the right to properly exercise their Article 8 rights in the UK. It has created a position whereby even if a person has been granted leave to enter or remain in the UK, or even granted citizenship, that person can still hold a precarious immigration status. Consequently, those involved with a person who has a precarious immigration status will also have little weight attached to their private life.
Nico Naper BA (Hons)