Case No. UKUT-00515-(IAC)

2002 are not confined to an appeal under section 84(1)(c). They apply also to appeals brought under section 84(1) (g). (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 as confined to the initiation, or creation, of the private life in question but extends to 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. DECISION AND REASONS I ntroduction 1. The four Appellants are nationals of Mauritius and, together, constitute a family unit formed by mother and father (the first two Appellants) and their daughter and son, aged 21 and 14 years respectively. The first Appellant was lawfully present in the United Kingdom from July 2005, initially as a visitor and subsequently , upon conversion, as a student. The other three Appellants entered the United Kingdom lawfully and acquired depend a nt status. Successive grants of leave to remain ensued. These were followed by several unsuccessful attempts by the first Appellant to acquire further leave to remain as a student. This phase culminated in her application for further leave to remain outside the Immigration Rules, dated 05 April 2013. This elicited, initially, an in-country unappe a lable refusal decision, followed by a decision to issue removal directions against all Appellants, dated 28 January 2014. 1. The grounds of the Appellants’ appeal to the First-tier Tribunal (the “ FtT ”) invoked Article 8 ECHR and section 55 of the Borders, Citizenship and Immigration Act 2009. In dismissing their appeals, the Judge noted in particular that the family unit would be undisturbed by the Secretary of State’s decisions. He also highlighted ability to reintegrate into their country of origin; the utility of educational achievements acquired in the United Kingdom; enduring significant family ties with Mauritius; and the ability of the third and fourth Appellants to learn a new language if necessary. The Judge further found certain aspects of the first and second Appellants’ evidence unworthy of belief. In making his conclusions he referred explicitly to section 117B(6) and section 117D(1)(a) and (b) of the Nationality, Immigration and Asylum Act 2002. The Issues 2. Following an initial refusal, permission to appeal was granted by a Judge of the Upper Tribunal. Both the grounds of appeal and the grant of permission focus on the new provisions of section 117 A and 1 1 7B of the Nationality, Immigration and Asylum Act 2002 (the “ 2002 Act ”), inserted by the Immigration Act 2014 and operative from 2 8 July 2014. As the appeal progressed, permission to amend the grounds was granted. As a result, the Appellants ’ case now telescope s to the following four submissions: (i) Sections 117A and 117B of the 2002 Act apply only to an appeal under section 84(1)(c) of the same statute. As a result, they have no application to this appeal which is brought under section 84(1)(a) and (g). (ii) Insofar as section 117B(4) and (5) of the 2002 Act purport to instruct Judges to attribute “ little weight ” to the considerations specified therein it cannot be thus construed as to do so would be to give effect 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 as confined to the initiation, or creation, of the private life in question but extends to its continuation or development. (iv) The adjective “ precarious ” in section 117B(5) of the 2002 Act contemplates, and is restricted to, temporary admission to the United Kingdom or a grant of leave to remain in a category which per mits no expectation of a further grant. In setting forth the four issues to be decided I have, as regards issues (ii) and (iii), preferred my own formulation which, I am confident, is a fair reflection of the slightly different terms in which they were constructed by Mr Malik on behalf of the Appellants. While each of the four issues shall be addressed seriatim , it is necessary to begin with the relevant statutory provisions. Statutory Framework 3. All statutory references which follow are to the legislation in force at the material time. For convenience, the provisions currently in force are reproduced in the Appendix hereto. The right of appeal against immigration decisions is governed by section 82 of the 2002 Act, t he material provisions whereof we re , at the material time, these : “ (1) Where an immigration decision is made in respect o f a person he may appeal to the Tribunal. (2) In this Part “immigration decision” means— (a) refusal of leave to enter the United Kingdom, (b) refusal of entry clearance, (c) refusal of a certificate of entitlement under section 10 of this Act, (d) refusal to vary a person ' s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain, (e) variation of a person ' s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain, (f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom, (g) a decision that a person is to be removed from the United Kingdom by way of directions under [section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (removal of person unlawfully in United Kingdom), (h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (control of entry: removal), (ha) a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave), (i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family), [(ia) a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (seamen and aircrews),] [(ib) a decision to make an order under section 2A of that Act (deprivation of right of abode),] (j) a decision to make a deportation order under section 5(1) of that Act, and (k) refusal to revoke a deportation order under section 5(2) of that Act. The permitted grounds of appeal are regulated by section 84(1), which provides: “(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds— (a) that the decision is not in accordance with immigration rules; (b) that the decision is unlawful by virtue of Article 20A of the Race Relations (Northern Ireland) Order 1997or by virtue of section 29 of the Equality Act 2010 (discrimination in the exercise of public functions etc) so far as relating to race as defined by section 9(1) of that Act; (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant ' s Convention rights; (d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant ' s rights under the Community Treaties in respect of entry to or residence in the United Kingdom; (e) that the decision is otherwise not in accordance with the law; (f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules; (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom ' s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant ' s Convention rights. Part 5A of the 2002 Act,