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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Arshad v Secretary of State for the Home Department [2025] EWCA Civ 355 (28 March 2025) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2025/355.html Cite as: [2025] EWCA Civ 355

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Davidge
UI-2022-006623

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 March 2025

This judgment was handed down remotely at 11.00 am on 28 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives. .............................

Lady Justice Elisabeth Laing:

Introduction

1. The Appellant, Mr Arshad, appeals against a determination of the Upper Tribunal (Immigration and Asylum Chamber) ('the UT') ('determination 2'). The UT, on the Secretary of State's appeal from the First-tier Tribunal (Immigration and Asylum Chamber) ('the F-tT'), had set aside and re-made determination 1, in which the F-tT had allowed Mr Arshad's appeal from a decision dated 3 December 2020 ('the Decision').
2. Mr Arshad was represented on this appeal by Mr Biggs and Mr West. The Secretary of State was represented by Mr Tabori. I especially thank both counsel for their written and oral submissions, which were excellent.
3. For the reasons given in this judgment, I would dismiss Mr Arshad's appeal.

The facts

4. Mr Arshad is a citizen of Pakistan. He was born on 4 November 1981. He entered the United Kingdom in June 2008 on a family visit visa which was valid until January 2009. He was encountered, working illegally, on 19 May 2011, and served with removal papers.
5. He then applied for leave to remain on human rights grounds (on 25 May 2011). The Secretary of State refused that application. Mr Arshad appealed. The F-tT dismissed his appeal on 8 August 2011. Mr Arshad's appeal rights were exhausted on 9 September 2011.
6. He made a second human rights application on 10 February 2020, based on his private and family life ('the application'). The Secretary of State refused that application in the Decision. Mr Arshad again appealed to the F-tT against the Decision.

The proceedings

The Decision

7. Mr Arshad had not told the Secretary of State about a partner, parent or dependent children in the United Kingdom, so the decision-maker did not consider the application under the family life section in Appendix FM of the Immigration Rules (HC 395 as amended) ('the Rules'). The decision-maker therefore considered the application under paragraph 276ADE(1)(i) in Part 7 of the Rules. Mr Arshad did not qualify for leave to remain under those provisions because he had not lived continuously in the United Kingdom for 20 years, he was more than 25 years old, and the decision-maker did not accept that there were very significant obstacles to his integration in Pakistan, for the reasons given in the Decision.
8. The decision-maker then considered whether there were any exceptional circumstances in Mr Arshad's case which would make a refusal of the application a breach of the European Convention on Human Rights ('the ECHR') because it would result in 'unjustifiably harsh consequences for him, for a relevant child or another family member'. 'Relevant child' is defined for this purpose as 'a person who is under the age of 18 at the date of the application' and who 'it is evident from the information provided with the application would be affected by a decision to refuse the application'.
9. Although Mr Arshad had said that he had stayed in contact with the Home Office after he overstayed his visa, he had taken no steps to regularise his stay until after he was encountered working illegally and served with removal papers in May 2011. He had made no further applications for over eight years. The fact that he had complied with the conditions of his immigration bail was not an exceptional circumstance. His close relationships with his sister and her children were 'simply those which we would expect to see between adult siblings and between extended family members'. The relationships were all formed at a time when Mr Arshad had been in the United Kingdom 'illegally or in a temporary capacity as a visitor'. That 'family life' was not family life for the purposes of Appendix FM.
10. The decision-maker also considered whether there were exceptional circumstances which might prompt the Secretary of State to consider giving leave to remain outside the Rules. The decision-maker had taken into account the duty imposed by section 55 of the Borders Citizenship and Immigration Act 2009 ('the 2009 Act'). Mr Arshad did not have parental responsibility for his sister's children since they lived with their biological parents in the United Kingdom. The children could therefore continue to live in the United Kingdom if he were to leave. The refusal of the application neither separated the children from their parents nor obliged them to leave the United Kingdom. Mr Arshad also relied on private life with friends and extended family members, but that had been established when he was in the United Kingdom illegally. He could not therefore realistically have expected that those relationships could continue uninterrupted.
11. Mr Arshad's rights had been balanced against the wider rights and freedoms of others and the general public interest. He had broken immigration regulations by staying in the United Kingdom after his leave to remain expired on 22 January 2009. The immigration decision was proportionate to 'the social need that is being fulfilled'. It was not therefore accepted that his removal would breach article 8. There was nothing which would prevent his friends and family from visiting him in Pakistan. He claimed he would be destitute in Pakistan, but his family had been supporting him in the United Kingdom and there was no reason why they could not continue to do so. He had stayed in the United Kingdom with no permission to work or access to public funds, but had been resourceful and had managed to maintain and accommodate himself. He had not explained why he would not be able to work and support himself in Pakistan. The economic situation in Pakistan was poor, it was accepted, but he would 'suffer no greater hardship than other people of that nation'.

Determination 1

12. The F-tT heard Mr Arshad's second appeal remotely on 22 October 2022. He was represented by Mr West. The Secretary of State was represented by a Home Office Presenting Officer.
13. Mr Fazli drafted a skeleton argument for the hearing. His case was that Mr Arshad's appeal should be allowed on family and private life grounds under article 8 of the ECHR, or that it should be allowed on the grounds of 'exceptional circumstances' under paragraphs GEN3.2-3.3 of the Rules. Mr Fazli identified three issues, consistently with that case. They were whether Mr Arshad enjoyed family life with his sister and her children, and if so, whether interference with that family life would be proportionate; whether there would be 'very significant obstacles to his reintegration in Pakistan', contrary to paragraph 276ADE(1)(vi) of the Rules; and whether there were 'exceptional circumstances' warranting a grant of leave outside the Rules, under paragraphs GEN3.2-3.3, with reference to the best interests of the children.
14. He referred to four authorities in his skeleton argument: Uddin v Secretary of State for the Home Department [2020] EWCA Civ 338; [2020] 1 WLR 2562 (adult and former foster parents; case remitted to the F-tT) ('Uddin'), Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 (adult and parents; no breach) ('Kugathas'); [2003] INLR 170; Ghising v Secretary of State for the Home Department [2012] UKUT 160 (adult and parents; no breach) ('Ghising'); and Kopf and Liberda v Austria (App no 1598/06 [2012] 1 FCR 526 (former foster parents and foster child who had lived with them for about 46 months; breach because of the failure of the domestic courts to deal 'diligently with a request for visiting rights') 'Kopf').
15. He submitted in his skeleton argument that there was a strong dependency between Mr Arshad, his sister and children, which was 'particularly strong because of [Mr Arshad's] lack of immigration status'. There were more than merely emotional ties. The threshold for showing family life with children is low. Mr Arshad's removal would affect the wellbeing and the best interests of the children. The test in paragraphs GEN3.2 and GEN3.3 was met.
16. The F-tT recorded Mr Arshad's arguments that he met paragraph 276ADE(1) and paragraphs GEN3.2-3.3 of the Rules, and that his removal would be a breach of article 8. The Secretary of State resisted those arguments. The F-tT reminded itself that the right of appeal was on the basis of that the Decision breached the Human Rights Act 1998 ('the HRA') (paragraph 12).
17. Mr Arshad started to give evidence in English but then used the court interpreter. He confirmed that he understood the interpreter (paragraph 13). The F-tT heard evidence from Mr Arshad and from his sister. The F-tT had indicated at the end of the hearing that it would allow the appeal (paragraph 13).
18. The application was made under 276ADE(1) and paragraphs GEN3.2-3.3. The F-tT repeated that the statutory right of appeal was not based on a breach of the Rules, but on a breach of section 6 of the HRA (paragraph 16). In paragraph 17, the F-tT said that it would consider the position under the Rules 'in so far as they incorporate Article 8'. If the Rules were met, that was decisive of proportionality. If they were not met, the F-tT had, further, to consider whether 'the decision breaches any protected right outside the Rules' (paragraph 17).
19. The Rules were not 'a complete code' for article 8 claims. The F-tT was still required 'ordinarily to undertake a two-stage assessment', to see whether the decision was in accordance with the Rules, and then to see whether it was contrary to the appellant's article 8 rights. The F-tT referred to MF (Nigeria) v Secretary of State for the Home Department [2012] UKUT 393 (IAC) (paragraph 18). Deciding article 8 claims outside the Rules involved 'the five steps in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27' (paragraph 19).
20. The F-tT referred to Part 5A of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act') in paragraph 20. Part 5A applies when 'a court or tribunal' has to decide whether 'a decision made under the Immigration Acts breaches… a person's right to respect for private and family life under Article 8....' (section 117A(1) of the 2002 Act). The F-tT added, 'In determining the "public interest" question, I must have regard to the considerations listed'. The F-tT then quoted the whole of section 117B of the 2002 Act. In paragraph 21 it quoted section 55 of the 2009 Act. It directed itself about the burden and standard of proof in paragraph 22.
21. Paragraphs 23-25 are headed 'Findings of fact'. The F-tT found that Mr Arshad was a citizen of Pakistan, that he entered the United Kingdom in 2008, that his sister and her children live in the United Kingdom, that he lives with them, that he was a police officer in Pakistan and that he has worked illegally as a butcher and a cleaner in the United Kingdom (paragraph 25).
22. The F-tT then turned to 'the disputed facts'. The F-tT said that the Secretary of State did not accept that Mr Arshad met the Rules or that his removal from the United Kingdom would breach his Convention rights (paragraph 25).
23. Under the heading 'Immigration Rules', the F-tT said that it did not have jurisdiction to hear an appeal 'against the substantive decision', but that it would 'address the application of [the Rules] as part of any proportionality assessment I may be required to undertake' (paragraph 26). In paragraph 27 it repeated that the application had been made under paragraph 276ADE(1) and GEN3.2-3.3.
24. Mr Arshad did not meet the requirements of paragraph 276ADE(1)(i)-(iv). The F-tT then quoted sub-paragraph (vi) (which refers to 'very significant obstacles'). The F-tT also quoted paragraph 14 of Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813; [2016] 4 WLR 152 (paragraph 29).
25. In paragraphs 30-36 it made some observations and findings on Mr Arshad's arguments. It held, in short, that he would not face 'any significant hurdles which means [sic] that he cannot reintegrate into life in Pakistan, even though there will, at the outset be some practical difficulties'. That did not mean that his 'application' to the F-tT could not succeed, but he could not succeed under paragraph 276ADE(i)-(vi) (paragraph 36).
26. The F-tT then considered paragraph GEN.3.2-3.3. The question posed by the first paragraph was whether there were any exceptional circumstances which would make the decision a breach of article 8 because it would 'result in unjustifiably harsh consequences for the applicant…a relevant child or another family member…' (paragraph 37). The decision-maker was required to take into account 'as primary consideration, the best interests of any relevant child' (paragraph 38).
27. The Secretary of State had considered those provisions and had not found any exceptional circumstances. The F-tT then described Mr Arshad's submission to the contrary in paragraphs 40-43. The F-tT accepted that Ms Nasir was his sister. It summarised her witness statement. Mr Arshad had lived with her and her husband since they had come to the United Kingdom in 2016. She had three children, who were 14, 7 and 4. She and Mr Arshad had always been very close. He had lived with her for 'over six years'. He had a 'very close bond' with the children.
28. In his oral evidence Mr Arshad told the F-tT that he was very close to the children as 'he is the third parent in the house'. His sister has a back problem. He takes them to and from school, to the park, and for outings. He feeds them and helps them with their homework. They can turn to him for help or support. The F-tT said 'It was clear to the Tribunal that there is a real and genuine emotional attachment between [Mr Arshad] and his nieces and nephews and that he is a key person on [sic] their lives and has been since the two younger ones were born' (paragraph 41).
29. The F-tT said that it was clear that Mr Arshad's sister 'struggles talking to people in authority'. She was not literate, as Home Office Presenting Officer accepted. She confirmed that she 'love[d] her younger brother very much and that he is a huge part of her life and the lives of the children as he has always been with them since they came to the UK' (paragraph 42).
30. Mr Arshad said that he wanted to stay in the United Kingdom, to open a butcher's shop become financially independent and make a life for himself. 'None of this is detrimental to his claim that he has a special relationship with these children. It is natural that a person living here 'for over six years', having no legal or regular income, will want to improve their positions' (paragraph 43).
31. The F-tT had considered all the evidence in the round. It found that Mr Arshad was 'effective in taking on the role of the third parent in the household. He is a person of huge significance in their lives, particularly the two younger children'. The F-tT found that there was an emotional attachment between them and Mr Arshad 'that is not the same as an aunt or uncle who they see every now and again. He lives with them, shares the care of them and they have bonded with him to the extent that I find it would be very damaging to them psychologically and emotionally if he were to be removed'. If he were removed, it would be 'to a country on the other side of the world'. They would not be able to see him often. Their contact would be limited to the internet or phone 'which is a poor substitute for the contact they have had with him to date' (paragraph 44).
32. In paragraph 45, the F-tT found that removing Mr Arshad from 'the lives of his nieces and nephews' would have unjustifiably harsh consequences for them and for his sister. The F-tT took into account the reference to the children's best interests in the relevant provision. It found that Mr Arshad did meet the requirements of the Rules.
33. The F-tT then considered 'Human Rights' (paragraphs 47-50). It referred again to the test in Razgar. Mr Arshad did have family life in the United Kingdom. He had lived in the United Kingdom for 'over 6 years'. There would be some interference with that if he were removed. That interference was serious enough to engage article 8. The interference was 'necessary in pursuance of a legitimate aim, namely the maintenance of a lawful immigration policy' (paragraph 49). The final step was to ask whether the interference was proportionate to that aim. In weighing up the competing considerations, 'the principle of immigration control has substantial weight and I need therefore in making this decision to strike a fair balance between the rights of the individual and the interests of the community…' (paragraph 50).
34. Mr Arshad met the Rules. That was a 'weighty factor in the proportionality assessment'. The 'legitimate public end… is the maintenance of a firm and fair immigration policy. Against that must be weighed the rights of [Mr Arshad] and [his] family to the family life which he has established since his arrival in the UK' (paragraph 52). The F-tT bore in mind section 55 and 'the wealth of cases dealing with the position of children in Human Rights cases'. The F-tT found that it would be a breach of the article 8 rights of the children and contrary to their best interests to remove Mr Arshad from their lives (paragraph 53).
35. The F-tT referred to Uddin and to Kugathas. The F-tT found that that Mr Arshad's relationship with the children, due to his 'permanence and lengthy stay in their home [and] his shared care' of them there were 'more than the normal emotional ties between family members who are not married or parent and child' (paragraph 55). In paragraph 56, the F-tT made an apparently irrelevant observation, referring to Ghising, about family life between adult children and their birth parents.
36. Kopf showed that family life was not confined to 'marriage-based relationships' and could include 'other de facto "family" ties'. Mr Arshad had lived with his sister and the children for a long time, and for the whole of the lives of the younger children (paragraph 58).
37. The F-tT considered section 117B in paragraphs 59-67. In paragraph 59, it announced, 'Having found that it [sic] is in the best interests of the children I now turn to the public interest element'. It found that Mr Arshad 'speaks very good English and it is clear that he has integrated into UK society' (paragraph 60).
38. In paragraph 61 the F-tT said that Mr Arshad had no criminal convictions. 'I accept that his immigration history is not ideal, but it is not the worst by any means'. He entered on a six-months' visa in 2006 and then left. He had returned on a two-year visa 'and twice tried to regularise his stay'. The F-tT accepted that Mr Arshad should have continued to make applications 'but as with many people in his position it has been a financial struggle for him to fund any further immigration applications as he has not been able to work legally and what work he has done has been badly paid' (paragraph 61).
39. He had been honest with the F-tT that he had worked 'and he did not have to do this so this is to his credit'. He had not been a burden. He had been helped by his sister and cousin and had worked on and off part-time, earning £100-£130 a week. The F-tT acknowledged that he had no permission to work. He had written and asked for it, but that permission had been refused. The F-tT reminded itself of paragraph 25 of ZH (Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 8. This court had observed that a person applying under the 14-year rule 'must be expected to have worked unlawfully [f]or much of their time here'. That was also 'clearly the case for those now applying under new the 20-year Rule'.
40. There was 'a real public interest in relation to employment' in Mr Arshad's staying in the United Kingdom. He had been trained as a butcher. The firm he worked for was going to set up a franchise and would help him to do so if he were allowed to stay. A few months ago the then Prime Minister allowed butchers to come into the United Kingdom with no visa, 'due to the lack of butchers that we have and need for those with those skills'. The F-tT referred to paragraph 35 of UE (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 975. '…[I]f there is a public benefit to [Mr Arshad] remaining then this is a consideration in the proportionality assessment'. He could set up a business and offer a service which was needed, could become a taxpayer and could contribute to the economy (paragraph 63).
41. The Secretary of State said that it was in the public interest to remove Mr Arshad. He had been in the United Kingdom for 'over 6 years' and had lived at the same address since being encountered working illegally in 2011. Nothing had been done to remove him. The fact that he had been living openly 'for so long with the full knowledge of the authorities' diminished the public interest in his removal (paragraph 64).
42. In paragraph 65 the F-tT added, 'I cannot and do not underestimate the real significance of the public interest in maintaining a firm but fair Immigration policy and protecting the economic wealth'. The F-tT did not 'find it reasonable to expect [Mr Arshad] to remove from the UK'. He would be 'torn away from his family'. They would have to live separate lives in separate countries. The F-tT referred to 'the test approved by Sedley LJ "what must be shown is more than mere hardship or a mere difficulty or mere obstacle. There is a seriousness test which requires the obstacles or difficulties to go beyond mere matters of choice or inconvenience"'. The F-tT found that there was 'more than mere hardship in this appeal' (paragraph 66). Mr Biggs helpfully clarified during the hearing of this appeal that the F-tT was quoting paragraph 31 of the judgment of Sedley LJ in VW (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 5; [2009] Imm AR 436.
43. The balance came down in favour of the article 8 rights of Mr Arshad and his family (paragraph 67). The F-tT therefore allowed Mr Arshad's appeal in determination 1.

The Secretary of State's grounds of appeal to the UT

44. The Secretary of State appealed against determination 1 to the Upper Tribunal (Immigration and Asylum Chamber) ('the UT'). There were two broad grounds of appeal.

1. The F-tT made perverse or irrational findings. The Secretary of State challenged the F-tT's findings about Mr Arshad's relationship with the two youngest children. The Secretary of State argued that there is no such thing as a 'third parent', that such a role could not be taken if both parents continued to be present and that there was no independent evidence to support the finding that his removal would cause great emotional and psychological damage to the two youngest children for him to be removed. The Secretary of State relied on Ortega (remittal; bias; parental relationship) IJR [2016] UKUT 298 (IAC).

2. The F-tT materially misdirected itself in law by attaching significant weight to Mr Arshad's family and private life which were formed when he had no leave to remain. The Secretary of State referred to section 117B of the 2002 Act and to Rajendran (s117B-family life) [2016] UKUT 138 (IAC) ('Rajendran'). Section 117B(4) and (5) are limited to 'private life' established when a person's status is unlawful or precarious, but section 117B is not exhaustive, so that the article 8 caselaw on precarious family life may be relevant.

The grant of permission to appeal to the UT

45. The F-tT gave the Secretary of State permission to appeal.

Mr Arshad's rule 24 statement

46. The UT recorded that Mr Arshad served a rule 24 statement ('the Statement') on the morning of the UT hearing. It was drafted by Mr West. Mr West submitted that the F-tT had not erred in law, or that, if it had, that any such error was immaterial.
47. He argued that the first ground of appeal was based on a misreading of determination 1. The F-tT was saying no more than that Mr Arshad was 'akin to a third parent', not that he was a step-parent. The F-tT was simply applying the test in Kugathas. The F-tT's findings of fact about the nature of the relationship were open to it on the evidence. The Secretary of State might consider that the F-tT's view was generous, but that did not show that it had erred in law.
48. It was not arguable that the F-tT had not taken into account the public interest in immigration control. Any 'suggestion that [the F-tT] did not have the little weight provision under section 117B(5) in her mind when considering [Mr Arshad's] private life is also unarguable'. He added that the F-tT had 'inherent flexibility and little weight is not an inevitable outcome…' He referred to paragraph 49 of Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536. The F-tT had 'plainly weighed' Mr Arshad's 'unlawful immigration status' against his private/family life. Mr West referred to paragraphs 61 and 65 of determination 1.

The UT's determination

49. The UT hearing was on 17 October 2022. Mr West represented Mr Arshad. The Secretary of State was represented by a Senior Home Office Presenting Officer. There are two versions of the UT's judgment, which I will refer to as 'determination 2(1)' and 'determination 2(2)'. Determination 2(2) is the approved transcript of the ex tempore judgment. Determination 2(1) is headed 'Decision & Reasons'. It was issued on 3 November 2023. The reasoning in the two versions is similar. It is not therefore necessary for me to refer to the terms of determination 2(2).

Determination 2(1)

50. The UT summarised the Secretary of State's grounds of appeal in paragraph 1. It described ground 2 as a challenge to the F-tT's 'conclusions in respect of the proportionality assessment for failure properly to weigh the evidence in the context of the statutory provisions elucidated in case law'. The UT then referred to Mr Arshad's rule 24 notice, which argued that the grounds of appeal were simply a disagreement with the weight which the F-tT had given to various factors in the proportionality balance (paragraph 3).
51. In paragraph 4, the UT said it was satisfied that the F-tT had erred materially. The F-tT 'does not correctly self-direct in respect of Article 8 and in no point in the decision is there reference to the little weight to be attached to private and family life garnered in the context, as here, of unlawful and precarious status'.
52. The UT noted Mr West's argument that the F-tT's reference, in paragraph 65, 'to the real significance of the public interest in maintaining a firm but fair immigration policy and protecting the economic wealth (sic)' was sufficient. The UT's response was that '…quite clearly, in the context of section 117 [sic] of the 2002 Act, that is not an adequate self-direction' (paragraph 5).
53. The UT added that both sides had agreed that if the UT found an error of law, it should re-make the decision at the hearing. The background to that is that the transcript of the hearing shows that, at its start, the UT Judge said that she would take this case first, as she understood that Mr West was in another court. She asked him, at the end of his oral submissions, whether he accepted that, if she disagreed with those submissions, she should re-make the decision. He accepted that she should.
54. The UT found that there was family life in the relationship between Mr Arshad and the children, and that the decision to remove him would interfere with it, so that it was necessary to consider proportionality. In that context, the UT took into account 'the immigration history of [Mr Arshad] who is an acknowledged overstayer following the six month period that he was with leave following his arrival in June 2008' (paragraph 6).
55. Mr Arshad had lived in his sister's household since 2015, 'and so has been very present in their lives and played a significant role…'. The UT referred to Mr West's concession that, given that both parents lived in the household, Mr Arshad's help with childcare and support of the children 'could not be characterised as being parental but rather a close "uncle" relationship' (paragraph 7) (and see p 6D-F of the transcript of the hearing).
56. The UT added that 'Whilst it is sufficient to find that it is in the children's best interests for him to remain in the United Kingdom, I am not satisfied that the position of the children would be so detrimentally affected in the event that he were removed that it should be a significant or dispositive factor in the proportionality assessment. Clearly their primary relationship in terms of parental responsibility remains with their parents and there is nothing in the evidence to suggest that they would not be able to continue to adequately care for the children in the event that he were to be removed'. The evidence was that, if Mr Arshad were granted leave to remain, he would be living separately in rented accommodation and supporting himself by working (paragraph 8).
57. The UT said that 'all of the other matters' were 'neutral'. The UT listed Mr Arshad's ability to speak English, his level of integration in the United Kingdom, and the facts that he had worked, and had enough skills to integrate (paragraph 9). It was likely that he would be self-sufficient financially, given his history (paragraph 10).
58. In paragraph 11 the UT referred to the failure of the Secretary of State to have removed Mr Arshad since serving a notice on him in 2011. There was no evidence that that had caused him any prejudice. It 'would of course have been open to him to leave'. That did not weigh significantly in the context of the facts.
59. The UT's conclusion, in paragraph 12, was 'Standing back and looking at all the matters that I need to take into account in the context of Section 117, I find this is a case where removal of [Mr Arshad] does not constitute a breach of Article 8'. That is where determination 2(1) ends.
60. There is further material in the transcript of the judgment ('Following further submissions'). The transcript records that Mr Arshad's appeal was dismissed on article 8 grounds. In paragraph 14 of the transcript of the judgment, the UT is recorded as saying that Mr West had specifically asked it to deal with the perversity issue which was the Secretary of State's first ground of appeal. The UT said that the F-tT had 'plainly erred in categorising the relationship as…a parental relationship and in that context has assessed the impact of removal as if [Mr Arshad] were being removed as a parent, and on both counts there is irrationality'. The first ground of appeal showed an error of law. It was enough to say that the finding was 'irrational'. This second section of the judgment was given after some discussion, recorded in a separate transcript, in which Mr West asked the UT to deal expressly with the Secretary of State's second ground of appeal.

Mr Arshad's appeal to this court

61. Mr Arshad appealed to this court on two grounds. I refused permission to appeal on the first ground. The second ground is that the UT erred in law in detecting an error of law in determination 1 or itself erred in law in its approach to proportionality in re-making the decision. Section 117B(4) of the 2002 Act refers to private life. What is at issue in this case, as the UT acknowledged, was family life. The F-tT dealt adequately with Mr Arshad's unlawful presence in the United Kingdom and the UT erred in law in holding otherwise.

Mr Arshad's submissions

62. Mr Biggs and Mr West gave four reasons to support the ground of appeal.
63. The first is that the F-tT's findings were open to it on the evidence. The UT should have shown appropriate deference to those findings. The finding in paragraph 44 was not perverse. The F-tT did not find a genuine parental relationship, but a particularly close bond. There is no reason to think that the F-tT did not have Part 5A in mind. It quoted section 117B (see paragraph 20, above). It assessed the relevant factors in paragraphs 59-67. It took into account Mr Arshad's 'precarious' immigration status and his immigration history (paragraphs 61-66) but found that the interest in immigration control was diminished by the Secretary of State's delay 'in effecting immigration control' and other factors. It treated the best interests of the children as a primary consideration.
64. Its analysis was consistent with the approach to precariousness in the authorities: paragraphs 49-53 and 54-60 of R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11; [2017] 1 WLR 823 (Agyarko); paragraphs 107-109 of Jeunesse v Netherlands (2015) 60 EHRR 17 (Jeunesse); and paragraphs 52-68 of Lal v Secretary of State for the Home Department [2019] EWCA Civ 1925; [2020] 1 WLR 858 (Lal). The cases show that the expectation is that where there is precarious family or private life, removal will only breach article 8 in exceptional circumstances, where there would be consequences which would be unjustifiably harsh for the applicant, his partner or children. That is the test which the F-tT applied, because it applied paragraph GEN3.2, which reflects it.
65. 'Precariousness' is not hard-edged. Its significance will depend on the circumstances, including any delay in enforcement. Its weight will be lessened if some members of the family (such as children) do not know about it. The concept of precariousness must not undermine the principle that the best interests of any children are a primary consideration (see paragraph 109 of Jeunesse and paragraphs 49-51 of CAO v Secretary of State for the Home Department [2024] UKSC 32; [2024] 3 WLR 847). Mr Arshad acknowledged that there is a potential exception to that approach, if there are strong immigration considerations which require the children to be identified with the conduct of their parent (paragraphs 78-79 of Butt v Norway (2012) Application No 4701/09).
66. The second point is that the 'little weight' provisions in section 117B(4) and (5) were not significant and do not apply outside the framework of Part 5A, contrary to the reasoning of the UT (see Lal). They did not apply to Mr Arshad's family life in this case. He did not rely on his private life or on a relationship with a qualifying partner. The attempt to rely on a 'little weight' principle outside section 117B is misconceived and was rejected in paragraphs 50-67 of Lal. Precariousness cannot be used to invent a 'little weight' principle for which Parliament has chosen not to legislate.
67. The Secretary of State was trying to re-run an argument which had been rejected in paragraphs 50-67 of Lal. Such an argument would contradict the principle that the best interests of children are a primary consideration. Young children cannot be expected to know that an adult's immigration status is precarious. They must not be blamed for things for which they are not responsible (point (7) of the principles in paragraph 10 of Zoumbas v Secretary of State for the Home Department [2013] UKSC 74; [2013] 1 WLR 3690 (Zoumbas), cited in paragraph 51 of CAO). For the reasons given by this court in Lal (paragraphs 54 and 64), Rajendran did not support the Secretary of State's argument. Section 117B is not exhaustive of the factors which may be relevant in an article 8 case.
68. In the light of those points, third, the UT's brief reasoning was untenable. The UT did not explain how the 'little weight' provisions in section 117B applied. They do not apply since the F-tT found that Mr Arshad's family life would be disproportionately interfered with by his removal, as paragraphs 33-34 of the Secretary of State's skeleton argument appeared to recognise. The UT's approach was not that the F-tT had failed to apply the concept of precariousness outside section 1117B. Rather, it was that section 117B(4) and (5) had not been applied properly. The UT made the error described by this court in paragraphs 50-65 of Lal. If the UT did hold that the F-tT erred in its approach to precariousness, the UT erred and did not properly explain its reasons. The most plausible view is that the UT thought that the concept of precariousness is equivalent to section 117B(4) and (5). That is wrong.
69. Fourth, the UT's own assessment of proportionality was inadequate. The brevity of its reasoning is a 'striking' contrast with that of the F-tT. The UT erred in four ways.

1. It did not treat the children's best interests as a primary consideration.

2. It did not acknowledge the significance of the Secretary of State's failure to act promptly, contrary to paragraph 52 of Agyarko.

3. It did not explain how section 117B(4) and (5) were relevant, and failed to identify the concept of precariousness.

4. It did not explain how it weighed the relevant factors or why factors which supported Mr Arshad's case were merely 'neutral'.

The submissions for the Secretary of State

70. Mr Tabori began his reply to the first of Mr Arshad's criticisms by submitting that it did not help Mr Arshad to argue that the F-tT's findings of fact were open to it on the evidence if the UT was right to hold that the F-tT misdirected itself. Nor was there any point in attacking the UT's approach to the Secretary of State's first ground of appeal if the UT was right to uphold the Secretary of State's second ground of appeal.
71. The F-tT's quotation of section 117B of the 2002 Act does not show that it was aware of the broad principle, recognised in the authorities, that if an appellant's presence in the United Kingdom is precarious, or unlawful, that is relevant to the proportionality balance in family life cases other than that referred to in section 117(4)(b). Paragraphs 54 and 64 of Lal show that this principle is still relevant.
72. Determination 1 nowhere acknowledged, still less applied, this principle. The authorities, including paragraph 108 of Jeunesse, as noted in paragraph 49 of Agyarko, show that this principle is an 'important consideration' in the assessment of proportionality. The F-tT therefore had to direct itself correctly in accordance with that principle. That underlines the inadequacy of a submission that the F-tT was 'aware' of the principle, when there is no trace of any such awareness in determination 1. A bare citation of paragraph GEN3.2 is not enough, as whether a consequence is 'unjustifiably' harsh will depend on the exact justification which is advanced in support of that consequence.
73. The fact that delay may reduce the importance of this principle does not rescue determination 1 if the F-tT did not recognise or apply the principle in the first place. Nor does the variable nature of precariousness help Mr Arshad, for two reasons. First, his status, which was that he had been present in the United Kingdom with no leave since 2008, is at the extreme end of the relevant spectrum. Second, in any event, Mr Arshad cannot defend the F-tT's approach by relying on a factor which might modify the application of a principle which the F-tT neither recognised nor applied.
74. In answer to Mr Arshad's second criticism, Mr Tabori submitted that it was not the Secretary of State's case that section 117B(4) or (5) applied or that the F-tT had erred in law in not applying them. The Secretary of State's case relies on the principle recognised in the caselaw outside Part 5A. It is a surprising submission (if this is Mr Arshad's case), that there is no room for the concept of precariousness outside section 117B(4) and (5). This principle was not invented by the UT.
75. There was no need for the UT to explain, Mr Tabori argued in answer to Mr Arshad's third criticism, why the precariousness principle is important. That is clear from the authorities. The principle clearly applied in Mr Arshad's case. The precariousness principle is not countered by the duty to treat the best interests of children as a primary consideration. They are separate features in the assessment of proportionality assessment (see paragraphs 108 and 109 of Jeunesse and paragraph 72 of Lal). It was not the UT's approach that the F-tT had failed to apply section 117B(4) and (5) properly. It had referred, rather, to 'Section 117' (see paragraphs 52 and 59, above). That was a reference to the broad assessment of the public interest. The precariousness principle in the authorities is relevant when a tribunal answers the public interest questions posed by section 117A(2)-(3). Even if (sed contra) the UT had wrongly referred to section 117B(4) or (5), any such error could not be material, because the underlying principle is relevant to the assessment of proportionality.
76. Mr Tabori introduced his answer to the fourth criticism by submitting that this court should give the appropriate deference to the UT's re-making of the decision, as explained in the authorities on which Mr Arshad relied in paragraph 3 of his supplemental skeleton argument. The passage in which the UT considered the best interests of the children must be read carefully (paragraph 56, above). The UT did treat those interests as a primary consideration and did not say that they should not be a 'primary or dispositive factor'. It was in the best interests of the children to stay in the United Kingdom with their parents, their primary carers. Mr Arshad's removal would not change that. The UT was entitled to find that the harmful effects of his removal on the children were not a dispositive factor, as their most important relationship was with their parents, who could care adequately for them. Even if it was in their best interests for Mr Arshad to stay in the United Kingdom, those interests were not paramount; see paragraph 10 of Zoumbas, cited in paragraph 51 of CAO. Delay is not a mandatory consideration (paragraph 52 of Agyarko, citing EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159, paragraphs 14-16). The bare fact of delay does not automatically weaken the force of the precariousness principle (paragraph 38 of EB (Kosovo)).
77. The UT did not err in law in referring to some factors as 'neutral'. They are factors the absence of which may weaken a claim. It does not follow that their presence strengthens a claim and Mr Arshad did not cite any authority which suggested that they did.

The relevant law

Jeunesse v Netherlands

78. The applicant and her partner ('W') were born in Suriname, where they had lived together. In 1991 W went to Holland to stay with his father. He was given Dutch nationality which entailed renouncing his Surinamese nationality. In 1997 the applicant entered the Netherlands with a visa. She did not return to Suriname when the visa expired. She made several unsuccessful applications for residence permits. She married W in 1999 and had two children with him. They were born in 2000 and 2005. Both were citizens of the Netherlands. A third child was born in about 2010.
79. The relevant Minister refused her fifth request for a residence permit on several grounds, giving decisive weight to the facts that the applicant had never lived lawfully in the Netherlands and that there was no indication that it would be impossible to enjoy family life in Suriname. The Dutch courts rejected her challenges to that decision. The European Court of Human Rights ('the ECtHR') held that the authorities had breached article 8.
80. Paragraphs 100-105 are headed 'General considerations'. The issue was whether the applicant should be allowed to live in the Netherlands on the grounds of her family life there. There was no dispute that there was, for the purposes of article 8, family life between the applicant, W and their children (paragraph 100). The applicant had not complied with the requirement to get a provisional residence visa before she left Suriname. Contracting States are in principle free to require aliens who want to live in their territory to ask from abroad. They are not obliged to allow aliens to await the outcome of immigration applications in their territory (paragraph 101).
81. Apart from for a short period (45 days, during which she had tourist visa), the applicant had never had permission to be in the Netherlands (paragraph 102). Where a Contracting State 'tolerates the presence' of an alien and thus allows her to wait for a decision on an application for a residence permit, for an appeal or to make a further application, the Contracting State allows her to take part in society, form relationships and to create a family. Article 8 does not, however, automatically require the Contracting State, as a consequence, to allow her to settle in its territory. 'In a similar vein, confronting the authorities of the host country with family life as a fait accompli does not entail that those authority are, as a result, under an obligation pursuant to [article 8] to allow the applicant to settle in the country'. The ECtHR had already held that 'in general, persons in that situation have no entitlement to expect to be given a right of residence' (see, for example, Chandra v Netherlands (53102/99) 13 May 2003) (paragraph 103).
82. In paragraph 104, the ECtHR distinguished the applicant's case from cases about settled migrants.
83. The ECtHR added, in paragraph 105, that the factual and legal situations of settled migrants and of those seeking admission to a host country ('albeit in the applicant's case after numerous applications for a residence permit and years of actual residence') are not the same. The criteria for assessing whether it was a breach of article 8 to withdraw the residence permit of a settled migrant could not be automatically transposed from such a case to the applicant's case. The question in that case was whether 'having regard to the circumstances as a whole, the Netherlands authorities were under an obligation imposed by article 8 to grant her a residence permit, thus enabling her to exercise family life on their territory'. The question therefore was whether the Netherlands had breached a positive obligation imposed by article 8. The ECtHR would take into account the principles most recently stated in paragraph 78 of Butt v Norway.
84. The next section (paragraphs 106-109) is headed 'Relevant principles'. The essential object of article 8 is to protect a person from arbitrary action by public authorities. Article 8 may also impose positive obligations. The boundary between positive and negative obligations is not exact. The relevant principles are similar. Regard 'must be had to a fair balance that has to be struck between the competing interests of the individual and of the community as a whole'. In both contexts, the state has a margin of appreciation (paragraph 106). Article 8 does not oblige a state, in general, to respect a married couple's choice about where to live, or to authorise 'family reunification' on its territory. The extent of a state's obligations to admit relatives of people who live in its territory will depend on the circumstances of those involved, and on the general interest. The relevant factors include the extent to which family life would otherwise be ruptured, the extent of ties in the Contracting State, whether there are insurmountable obstacles in the way of family life in the country of origin and whether there are factors of immigration control, like a history of breaches of immigration law or considerations of public order weighing in favour of exclusion (paragraph 107).
85. 'Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of family life within the host state would from the outset be precarious. It is the Court's well established case law that, where this is the case, it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8' (paragraph 108). Where children are involved, their best interests must be taken into account. There was a 'broad consensus' that 'in all decisions concerning children, their best interests are of paramount importance', though they could not 'alone' be 'decisive'. Such interests must be given 'significant weight'. That meant that the authorities assess evidence about the effects of 'any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it' (my emphasis) (paragraph 109).
86. The applicant well knew that her status was precarious before she started her family life in the Netherlands (paragraph 113). When a state is confronted with a fait accompli 'the removal of the non-national family member…would be incompatible with [article 8] only in exceptional circumstances' (paragraph 114). The most important consideration was that all the other members of the family were nationals of the Netherlands and had the right to enjoy their family life with each other there. She had held that nationality at birth. She lost it when Suriname became independent. She did not choose to become a national of Suriname. She should not therefore be equated with a person who had never been a national of the Netherlands (paragraph 115).
87. A second important feature was that she had been in the Netherlands for more than 16 years and had no criminal record. She did not comply with the obligation to leave the Netherlands, but her presence there had been tolerated by the authorities for a long time. That tolerance, for a long time during most of which the authorities could have removed her, 'in effect enabled the applicant to establish and develop strong family, social and cultural ties in the Netherlands'. She had lived at the same address for 15 years, and the authorities had aways known her address (paragraph 116).
88. The ECtHR accepted that there seemed to be no insurmountable obstacles to their settling in Suriname. It was likely that they would experience 'a degree of hardship' if they were forced to do that. It was necessary to take into account the situation of the whole family (paragraph 117). The impact on the children was another important feature of the case (paragraph 118). The applicant took care of them 'on a daily basis'. That should not be ruptured by forcing her to go to Suriname. W worked full-time and did shift work. He was not at home on some evenings. The applicant was a mother and housewife. She was the children's primary carer. They were 'deeply rooted in the Netherlands' of which they and W were nationals. There was no evidence of any link between them and Suriname. They had never been there. The ECtHR was not impressed by the public authorities' assessment of best interests of the children (paragraph 120).
89. The question was whether a fair balance had been struck. In the 'particular circumstances' of this case, it was 'questionable' whether 'general immigration considerations of themselves can be regarded as sufficient justification for refusing the applicant's request for residence in the Netherlands' (paragraph 121). The ECtHR 'while confirming' the principles in paragraphs 106-109, found that the applicant's circumstances 'must be regarded as exceptional'.
90. There is a joint dissenting Opinion by Judges Villiger, Mahoney and Silvis (paragraphs OI-1 - OI-10). They noted that 'exceptional character of the particular circumstances seems to override most of the previously followed jurisprudential principles'. The ECtHR appeared to be 'acting as a first instance immigration court, in disregard of the principle of subsidiarity' (paragraph OI-1). The ECtHR's 'reasoning can hardly be understood as applying the principle that family-creation without having stable grounds for residence is at the risk of those who do so in a situation that is known by them to be precarious. The margin of appreciation, which was wide in such circumstances, has undergone a hot wash in this case' (paragraph OI-8).
91. Where parents make personal choices, the state's positive obligations are usually of secondary importance, and 'almost the same goes for facing consequences of deliberate acts', such as imprisonment for crimes, even though children are likely to suffer from it. If parents choose to emigrate to another country, the state 'has generally speaking no positive obligation to intervene'. The present case was not about a rupture of family life caused by the state. It was about a family wanting to live in a particular place. Generally, it is understood that respect for family life 'implies that the best interests of children are then considered to be best served by accepting the consequences of (lawful) choices made by their parents', unless that would violate the children's fundamental rights. 'Shifting the responsibility for consequences of the (lawful) choices made by parents to the state is, in our view, in principle not conducive to the furtherance of the best interests of the children with regard to family life. There would be a great risk that parents exploited the situation of their children in order to secure a residence permit for themselves' (paragraph OI-9).
92. The approach of the ECtHR in this case in effect gave 'prospective immigrants who enter or remain in the country illegally and who do not properly and honestly comply with the prescribed conditions… a special premium, in terms of Convention protection, over those who do respect the applicable immigration law…The result is liable to encourage illegal entry or overstaying…The right answer in hard cases is one that fulfils the obligation of the community to treat its members in a civilised but also a coherent and principled manner'. By relying on 'exceptional circumstances', the ECtHR was 'drifting away from the subsidiary role assigned by the Convention, perhaps being guided more by what is humane than by what is right' (paragraph OI-10).

Agyarko

93. The two claimants were unlawful overstayers. Each formed a relationship with a British citizen, which, in one case, led to marriage. Each applied for leave to remain in the United Kingdom, relying on article 8. In the first case, the Secretary of State decided that there were no 'insurmountable obstacles' to the continuing of family life outside the United Kingdom within the meaning of the relevant provision of the Rules. In the second case, the Secretary of State reached the wrong conclusion that there was no evidence that the claimant and her partner lived at the same address. Each applied for judicial review of the decision in her case. The UT refused each permission to apply for judicial review. This court dismissed their appeals and they appealed to the Supreme Court. The Supreme Court dismissed their appeals.
94. The Supreme Court held that, whether or not article 8 imposed positive or negative obligations on a state in cases like these, question was whether the Secretary of State had struck a fair balance between the applicant's interests and those of the public. Lord Reed gave a judgment with which the other members of the court agreed. In paragraph 2, he explained that the focus of the appeals was paragraph EX.1(b) of Appendix FM to the Rules (which imposes, in the case of a person in the United Kingdom in breach of immigration laws, the test of insurmountable obstacles to family life outside the United Kingdom), and a requirement, which, at that stage, was to be found in the Secretary of State's Instructions, that there must be 'exceptional circumstances' for leave to be granted in such cases outside the Rules. That requirement was similar to the requirement which is now in paragraph GEN.3.2 of the Rules.
95. Lord Reed explained in paragraphs 5-7 how, since the enactment of the HRA, the Rules and Instructions had become a detailed framework for considering article 8 cases. 'The position was different when the House of Lords decided the leading case of Huang v Secretary of State for the Home Department' [2007] UKSC 11; [2007] 2 AC 267 (paragraph 8). Indeed, the provisions which were at issue in Agyarko were part of the Secretary of State's response to Huang (paragraphs 9 and 10).
96. A relevant factor to which the new provisions referred was 'family life established when the parties knew that one or both of them lacked a valid basis of stay in the United Kingdom'. Family life established in such circumstances was said to carry 'less weight under Strasbourg case law' (paragraph 11).
97. The thinking behind the new provisions included that it was better and likely to produce consistency in decisions if the Secretary of State's policy was clear, so that the courts knew what it was, and could give it appropriate weight. If the new provisions were proportionate, a decision taken under them would be compatible with article 8 'other than in exceptional cases' (paragraphs 12-13). Lord Reed then quoted the relevant paragraphs of Appendix FM and of the Instructions (paragraphs 14-17).
98. Lord Reed listed the issues in paragraph 39. They included 'How should "precariousness" be interpreted and what role does it play in the article 8 assessment?' and whether the Secretary of State could 'properly' ask whether there are 'exceptional circumstances' when considering whether to grant leave to remain outside the Rules to a non-settled migrant with a 'precarious' family life.
99. In paragraphs 40-60, he considered four topics: 'The correct approach to the removal of non-settled migrants' (paragraphs 40-41), 'Insurmountable obstacles' (paragraphs 41-48), 'Precariousness' (paragraphs 49-53) and 'Exceptional circumstances' (paragraphs 54-60). He noted that in paragraph 40 of Jeunesse, the ECtHR had asked whether article 8 imposed a positive obligation on the Netherlands. Lord Reed said, in effect, that it makes no difference whether these cases are about positive or negative obligations. The question in each type of case is whether a fair balance had been struck (paragraph 41).
100. In paragraph 42, he described the factors, which according to paragraph 107 of the judgment in Jeunesse, are relevant in assessing proportionality under article 8 (see paragraph 84, above). In paragraphs 43-45 he compared the approach of the ECtHR and that of the Rules to the test of 'insurmountable obstacles'. The Rules were not just 'the product of legal analysis', but were intended to be 'a summary of the Strasbourg case law on article 8' (paragraph 46). They were the Secretary of State's assessment 'at a general level, of the relative weight of the competing factors when striking a fair balance under article 8'. The courts could review that general assessment, but must 'bear in mind the Secretary of State's constitutional responsibility for policy in this area, and the endorsement of the Rules by Parliament.' Courts also have to consider how the balance had been struck in individual cases. 'In doing so, they have to take the Secretary of State's policy into account and to attach considerable weight to it at a general level, as well as considering all the factors which are relevant to the particular case' (paragraph 47).
101. In the case of people who are in the United Kingdom in breach of the immigration laws, it was 'not apparent why it should be incompatible with article 8 for leave to be refused' if there were no insurmountable obstacles (as defined in the Rules) and there were no exceptional circumstances (as then defined in the Secretary of State's Instructions). The Rules and Instructions were compatible with article 8. That did not entail, however, that decisions applying the Rules in individual cases would always be compatible with article 8. If that question was raised in a specific case, it must be decided by an independent court (paragraph 48).
102. He recorded in paragraph 49 that in Jeunesse the ECtHR had said 'consistently with earlier judgments of the court, that an important consideration when assessing the proportionality under article 8 of the removal of a non-settled migrant from a contracting state in which they have family members, is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be "precarious"'. He added that the ECtHR had said that in such cases, it was only likely to be in 'exceptional circumstances' that the removal of the non-national family member would violate article 8.
103. The Instructions directed officials who were considering whether there were exceptional circumstances and whether leave should be given outside the Rules to consider all relevant factors, including whether the relationship was formed at a time when the partner 'had no immigration status or this was precarious'. They were instructed to give less weight to family life formed by an applicant 'in the full knowledge that their stay here is unlawful or precarious' when balanced against immigration control, that family life 'formed by a person lawfully present in the UK'. Lord Reed said that that the Instructions were 'consistent' with the Strasbourg cases, including Jeunesse.
104. The significance of this factor 'depends on what the outcome of immigration control might otherwise be'. He contrasted a case in which an applicant would otherwise be deported as foreign criminal with a case in which an applicant was otherwise certain to be granted leave to enter at least if an application was made from outside the United Kingdom. In such a case there 'might be no public interest in removal'. That was illustrated by Chikwamba v Secretary of State for the Home Department [2008] UKHL 40; [2008] 1 WLR 1420 (paragraph 51). He added that the cogency of the public interest in the removal of a person is likely to be reduced, or the weight to be given to precarious family life is liable to increase if there is 'protracted delay in the enforcement of immigration control'. He referred to EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] AC 1159 (paragraph 53). The reference to 'full knowledge' of the position was also consistent with the Strasbourg cases (paragraph 53).
105. In paragraph 54 he referred to the principle established by those cases that '…the Convention is not intended to undermine' the right of states to control entry into their territories 'by enabling non-nationals to evade immigration control by establishing a family life while present in the host state unlawfully or temporarily, and then presenting the state with a fait accompli'. He quoted paragraph 114 of Jeunesse (see paragraph 86, above), and described the ECtHR's approach to the facts of that case in paragraph 55. The ultimate question in cases involving precarious family life is whether refusal is proportionate 'in the particular case before it, balancing the strength of the public interest in the removal of the person in question against the impact on private and family life'. All the relevant factors must be taken into account. 'The critical issue will generally be whether, giving due weight to the strength of the public interest in the removal of [the applicant], the article 8 claim is sufficiently strong to outweigh it. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control' (paragraph 57). The test of 'exceptional circumstances', as defined in the Instructions, was not incompatible with Huang (paragraphs 58-60).

Lal

106. The appellant arrived in the United Kingdom with entry clearance as a student in 2011. Her leave to remain was extended until April 2015. In December 2014, she married a British citizen ('H'). She applied for leave to remain in the United Kingdom on the basis of her relationship with him two days before her leave would have expired. The terms of the relevant provisions of the Rules and of the Instructions were similar, if not identical, to those considered in Agyarko. The Secretary of State refused her application. The only reasons for decision were that the Secretary of State did not accept that there was a 'genuine and subsisting relationship' between her and H, or that they intended to live together permanently in the United Kingdom. The Secretary of State for the Home Department did not consider that there were any exceptional circumstances which warranted a grant of leave outside the Rules.
107. The appellant appealed to the F-tT. This court said that the Rules 'and associated guidance' were highly relevant to the F-tT's task, for the reasons explained in, for example, Agyarko (paragraph 17 of the judgment of the court). The court also quoted sections 117A and 117B of the 2002 Act (paragraphs 18 and 19).
108. The evidence before the F-tT included that of H. He was in his 70s and retired. His evidence was that 'there was no way that he would be able to live in India as he could not put up with the heat'. That was supported by witness statements from two of his children. In cross-examination he had said that he had refused a good and very well-paid job in Majorca for that reason. The F-tT allowed the appeal. It accepted that the relationship met the test in the Rules. It dealt briefly with insurmountable obstacles, and accepted that there were such obstacles to family life in India.
109. The Secretary of State appealed to the UT. The UT rejected an argument that the F-tT had erred in law in finding that the relationship was genuine. The second ground of appeal was that the F-tT had given inadequate reasons for finding that there were insurmountable obstacles to family life in India. The UT allowed the appeal on this ground, essentially because it considered that the F-tT had not applied a high enough threshold. The UT re-made the decision, and dismissed the appellant's appeal.
110. This court considered that the F-tT had erred in deciding that the insurmountable obstacles test was met (paragraph 34). The test was not subjective (paragraph 37). The F-tT was entitled to find that H's sensitivity to the heat would be 'a very significant difficulty' but not that it would make it impossible for him to live in India. The F-tT should have considered the issue in more detail, and its factual inquiry had been inadequate. The UT had been right to set aside its determination (paragraphs 38-39).
111. The UT's treatment of the issue was not without its problems, but the UT had been entitled to hold that the appellant had not shown that, by itself, H's problems with hot weather did amount to an insurmountable obstacle. The UT had erred in not considering that question cumulatively with other points, however (paragraph 45). Had the UT done that, the answer would not have been a 'foregone conclusion' (paragraph 46). The UT had therefore materially erred in law (paragraph 47).
112. The next issue was whether the UT had erred in law in finding that there were no 'exceptional circumstances' as defined. The UT had said that section 117B(4) required it to attach little weight to the relationship which had been formed when the appellant's immigration status was precarious. It had added that the appellant was an overstayer when she married H and that she had never had settled status. There were no compelling circumstances which showed that she would not be able to live in India without H without serious hardship.
113. This court identified several errors of law in the UT's reasoning. Section 117B(4) does not refer to 'precarious' status. It only requires 'little weight' to be given to a relationship formed with a qualifying partner established when a person is in the United Kingdom 'unlawfully'. The only reference to 'precarious' is in section 117B(5) (which concerns private life). No provision states that little weight should be given to a relationship formed with a qualifying partner when a person's immigration status is precarious (paragraph 50). That error would have been immaterial if the appellant had been an overstayer. But the appellant had never been in the United Kingdom unlawfully, so the UT had considered her case on a false premise. The reason for that was a mistake in the decision letter (paragraph 51).
114. The Secretary of State argued that the error was immaterial because case law showed that little weight should be given to a relationship formed when a person's immigration status is precarious. The cases on which the Secretary of State relied included Rajendran and Jeunesse. There are degrees of precariousness which range from 'at one extreme, someone who is in the country in breach of immigration laws and is liable to removal through to someone who has been present lawfully… for some years and is on a pathway to settled status'. It would be 'unreasonable' to give 'equal weight' to family relationships established by people in such different situations. There was 'no settled jurisprudence which requires this'. This court referred to some of the authorities in paragraphs 57-59. Its conclusion was that Parliament had left it 'open to courts and tribunals in cases where a relationship with a qualifying partner is established at a time when a person is lawfully present in the UK but does not have indefinite leave to remain to give such weight to the relationship as is appropriate in the circumstances of the particular case' (paragraph 59).
115. The Rules did not treat everyone whose immigration status is precarious in the same way. This court gave examples in paragraph 60. The Instructions were also consistent with that approach (paragraph 61). This court commented on TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109; [2018] Imm AR 1301 in paragraphs 62-63, and on Rajendran in paragraph 64. It had 'no issue' with the UT's comments on section 117B and family life'. It accepted Mr Malik's submission on behalf of the Secretary of State that 'there is no rule of law which requires that little weight should not be given to a relationship formed with a British citizen when the applicant's immigration status is precarious. The point is that what weight it is appropriate to give such a relationship in the proportionality assessment depends on the particular circumstances'. Those include the length of the relationship, the details of the applicant's immigration history, and her status when the relationship was formed and when the application was made (paragraph 64).
116. The UT had also erred in law in asking whether the couple could live in India 'without serious hardship' (paragraphs 68 and 69).) This court listed the factors which would be relevant to such an assessment in paragraph 70. Its conclusion (paragraph 71) was that, had the UT taken the right approach, there was 'a real possibility' that it would have decided that the appellant's removal was disproportionate. There had been a relevant change in circumstances since the decision which was challenged. The couple now had a daughter. This court did not remit the case to the UT, but directed the Secretary of State to consider it again (paragraph 72).

Discussion

Family life and precariousness

117. Two concepts are significant in this appeal: 'family life' and 'precariousness'. It is necessary to understand the scope of those concepts before making any decision about the arguments on this appeal. Neither has a fixed meaning, and confusion is likely if they are used loosely.
118. First, the F-tT categorised Mr Arshad's relationship with his sister and her three children as 'family life'. The UT did not disagree with that classification. There is, however, a range of different types of relationship which may amount to 'family life'. This, it seems to me, is what the Secretary of State was hinting at in her first ground of appeal to the UT. The family life of parents who live together with their young children is at the core of family life. It is, self-evidently, entitled to greater weight in any proportionality balance than more distant relationships, such as the relationships between adult siblings who have spent periods of their adult lives in separate households, and the relationships between a resident uncle and young children who have both parents living at home. The fact, therefore, that a fact-finder has classified a relationship or relationships as 'family life' for the purposes of article 8 is only a starting point. It is necessary to understand the nature and quality of the relationship before it can be weighed against other considerations.
119. Second, the word 'precarious' has been given a range of meanings in the cases. I accept Mr Tabori's submission that it is essential to be clear, in each case, what is meant by the word 'precarious' (see Lal). I also accept his submission that the loose way in which the word has been used in some of the cases does not help Mr Arshad. Mr Arshad's case is at the far end of the spectrum which this court described in Lal. His short period of leave expired in January 2009. He has been here in breach of the immigration laws ever since. His case should not be confused or equated with the case of a person who has always had leave to remain and is on a path to settlement (or with any of the cases between his extreme and that other extreme). They are different cases. I also accept Mr Tabori's submission that the cases show that the fact that a family relationship has been formed and/or developed when a person is in the United Kingdom illegally is relevant to the weight which should be given to that relationship in the assessment of proportionality. That is so whether the point arises outside the scheme of Part 5A of the 2001 Act, or within that scheme, as Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536 illustrates.

Did the F-tT err in law?

120. Mr Biggs is, of course, right to submit that section 117B(4) and (5) do not apply to the family relationships in this case. But, first, I accept Mr Tabori's submission that section 117B is not exhaustive of the considerations which are relevant to the assessment of proportionality, as Jeunesse and Agyarko both show. In those cases, the fact that the applicant was an overstayer was a treated as a relevant factor. That fact is what public lawyers describe as a 'mandatory relevant consideration'. Second, my agreement with Mr Bigg's submission about section 117B(4) and (5) means that the F-tT's quotation of section 117B in paragraph 20 of determination 1 cannot be treated as a proxy for this factor, precisely because section 117B does not refer to it.
121. Third, there is no reference to this factor in paragraphs 51-58 of determination 1 (headed 'Assessment of proportionality'), or elsewhere. The references to 'the legitimate public end' in paragraph 52 and to 'the real significance of the public interest in maintaining a firm but fair Immigration policy…' in paragraph 65 are not proxies for this consideration, either. They are references to the public interest against which any family life has to be balanced when proportionality is assessed, but they do not and cannot affect the weight to be given to that family life.
122. Nor is there any reference to this factor in the section headed 'Section 117B' (paragraphs 59-67). Paragraph 61 (see paragraph 38, above) is a euphemistic and inadequate account for this purpose. The F-tT obscured the fact that Mr Arshad has been here illegally since January 2009 by saying that his immigration history 'is not ideal but it is not the worst by any means'. The F-tT did not use the words 'unlawful' or 'illegal' at all, except when it referred to the fact that Mr Arshad had worked even though he had no permission to. Indeed, it seems to have treated the consequences of Mr Arshad's overstaying as mitigating factors. Nor did the F-tT face up to the fact that his relationships were either created (with the children) or developed (with his sister) when he was in the United Kingdom illegally. Still less did the F-tT factor this into its consideration of proportionality. I am also troubled by the F-tT's references, in paragraphs 43, 49, and 64 of determination 1, to the fact that Mr Arshad had been living here for 'over six years' which, again, downplays the facts. I therefore accept Mr Tabori's submission that there is no hint that the F-tT treated the fact that the relevant relationships were formed or developed during Mr Arshad's long illegal presence in the United Kingdom as relevant to its assessment. That approach was unlawful. I do not consider that the children's likely lack of knowledge of Mr Arshad's immigration status is an answer to this point. It is clear from the reasoning in Jeunesse, which was adopted in Agyarko, that there are two reasons why an applicant's unlawful status is relevant to the assessment of proportionality. The first is that people who know that their relationship is formed and developed when one person has no right to be in the host country cannot expect to be able to stay there on the basis of that relationship. The second, which applies in the case of children, who may well not have that knowledge, is that it is not in the public interest for the parents of children to present the host state with a fait accompli in order to get permission to stay there. The ECtHR had made this point in paragraph 79 of its judgment in Butt v Norway (Application No 47017/09, 4 December 2012) although, in the event, it was not a decisive consideration on the facts of that case; and in paragraph 105 of its judgment in Jeunesse, the ECtHR said that it would follow the principles which it had stated in Butt. It is evident from the rest of the judgment that it did so.
123. It follows that, whatever the UT may have made of the Secretary of State's first ground of appeal to it, it was right to hold that the F-tT had erred in law by not taking into account, in its assessment of proportionality, that the relationships were formed or developed when Mr Arshad was in the United Kingdom unlawfully. The UT succinctly expressed this point in paragraph 4 of determination 2 (see paragraph 51, above). It does not matter for this purpose what the UT thought the source of this principle was, although, in the light of the terms of the Secretary of State's second ground of appeal (see paragraph 44.2, above), it is reasonable to assume that the UT was not relying on section 117B(4) or (5). That may explain the two references in determination 2(1) to 'Section 117' (see paragraphs 52 and 59, above). What matters, instead, is that, it is in law a mandatory relevant consideration on facts like these. The UT realised that the F-tT had not, as it was required to in this case, taken it into account in its assessment of proportionality.

Did the UT err in law in its assessment of proportionality?

124. The next question is whether the UT erred in law when it re-made the decision. I have listed Mr Arshad's four criticisms of the UT in paragraph 69, above.
125. The UT acknowledged that it would be in the best interests of the children for Mr Arshad to stay in the United Kingdom. But Mr Arshad is not their father. The UT found that the effect of his removal would not be significant or dispositive in its assessment of proportionality, because their primary relationship was with their two parents, and there was no evidence to suggest that they would not be able to care adequately for them. There were, in this case, therefore, two facets of the children's best interests. Those interests were not exclusively based on the continuation of their close relationship with Mr Arshad. That was one such facet, but it could not displace the relationship which was more important for their best interests, that is, the relationship with their parents. The UT was entitled to conclude that the impact of Mr Arshad's removal was not a decisive factor in this case. I therefore accept Mr Tabori's submission that the UT did, in paragraph 8 of determination 2, treat the children's best interests as a primary consideration. It was obliged to do no more than that. That single facet of the children's best interests was not, by any means, a paramount consideration. I also consider that the UT was entitled to take into account that, if Mr Arshad was given leave to remain, he intended to live in a different household and to work full-time. I therefore reject Mr Arshad's first criticism.
126. I reject Mr Tabori's submission that delay by the Secretary of State is not a relevant consideration in the assessment of proportionality. That is not supported by the reasoning of the majority in EB (Kosovo). The natural reading of paragraphs 14-16 of Lord Bingham's speech is that, where there is significant delay in enforcement, a court or tribunal must ask itself whether delay has had one of the effects to which he referred. The weight to be given to any such delay and to its impact on the relevant family or private life, where such an impact is found, is for the court or tribunal to decide. The UT took delay into account in paragraph 11 of determination 2 (see paragraph 58, above). The question is not, therefore, whether the UT ignored a relevant consideration, but whether it was open to the UT to give the delay in this case the weight which it did. Whether the delay has caused prejudice to an appellant is plainly relevant to such an assessment. I consider that the weight which it was appropriate to give this consideration on the facts was for the UT to decide, and that it did not err in law in deciding that the Secretary of State's delay did not 'weigh significantly in reducing the public interest in the context of the facts here'. I therefore reject Mr Arshad's second criticism.
127. I accept Mr Biggs' submission that section 117B(4) and (5) were not relevant in this case. It follows that the UT did not have to explain why they were not relevant. The UT referred, in paragraph 6 of determination 2(1), to the fact that Mr Arshad had been an acknowledged overstayer ever since his leave to remain, which had been granted in June 2008, had expired. It did not, I accept, say that this lessened the weight which it could give to Mr Arshad's family life. But it is basic that a determination of the UT has to be read as a whole. That approach applies with particular force in this case. For good practical reasons, the UT had decided, with the agreement of the parties, to consider whether the F-tT had erred in law and, if so, to re-make the decision in the same determination. In paragraph 4 of determination 2(1) (see paragraph 53, above), the UT had described the principle that little weight should be given to private and family life formed and developed when a person's status is 'unlawful and precarious'. This criticism is, therefore, a formalistic one. I consider that it is clear from determination 2(1) as a whole that the UT understood that little weight was to be given to such relationships. It is therefore unrealistic to suggest that that is not the approach which the UT took when it re-made the decision, not long after uttering the words in what is now paragraph 4 of determination 2(1). I therefore reject the third criticism.
128. I do not accept that the UT was required to say any more than it did about the weight which it gave to the various relevant factors. Section 117A(2) obliges a tribunal in an article 8 case to have regard, in particular, to the considerations listed in section 117B. The factors to which it referred in paragraphs 9 and 10 are mentioned in section 117B(2) and (3). The UT did not err in law in treating them as 'neutral' in this case, because they are factors which, if missing, will increase the public interest in removal, but which do not increase the weight to be given to family life. I therefore reject the fourth criticism.

Conclusion

129. For those reasons I would dismiss Mr Arshad's appeal.

Lord Justice Peter Jackson

130. I agree.

Lord Justice Underhill

131. I also agree.