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“Precarious” immigration status

We know what the word “precarious” means in everyday speech. But what does it mean in the context of immigration law?

This question has reached the Supreme Court (which is, in the immigration field, the highest court in the UK), and it has provided a definitive answer.

The case was called “Rhuppiah” and it made an interesting read. Ms Rhuppiah is a Tanzanian national and she first came to the UK in 1997 as a student. She apparently extended her student leave on no less than 12 occasions – something that would not be very possible these days. But it appears that the college or colleges where she was studying – and who were apparently responsible for submitting her visa applications – were not very efficient, and on occasions the visa applications were submitted late.

But, or so it seemed at the time, no real harm was done: in those days (and very differently from now) it was possible to submit visa applications quite late and still have them accepted.

In 2009, when she had been in the UK for some 12 years, she made an application for indefinite leave to remain (ie settlement) on the basis of 10 years’ continuous lawful residence. But the application was refused because – yes, you’ve guessed it – she had various short periods of overstaying during the relevant 10-year period and her lawful residence was thus not sufficiently “continuous”.

She appealed the decision to the First-Tier Immigration Tribunal but unsuccessfully. She subsequently tried to appeal to the Upper Immigration Tribunal but also unsuccessfully. So she gave on up this, but she did not give up completely.

On 1 July 2012 she made another application for indefinite leave to remain, but this time on the basis of 14 years’ continuous residence, unlawful or partly unlawful. (As some readers may know or remember, this was a rule which existed at that time)

But here events took a really nasty turn. She unfortunately applied on the wrong form, and the application was therefore deemed to be invalid and was returned to her. She subsequently submitted a fresh application on 24 July 2012. But on 9 July 2012 (a date we remember well) the rules had changed. The 14-rule was replaced by a more complicated scheme of rules, including a new 20-year rule for unlawful or partly unlawful residence. And so of course she could not meet this requirement because she had not been in the UK for as long as this.

But by this point she had established a strong “private life” in the UK. In human rights law private life means, roughly speaking, all the aspects that might make somebody attached to and integrated in the UK other than family life. She was acting as a dedicated carer for a friend of hers who suffered from debilitating health problems and with whom she lived. She was not part of the friend’s family but, she argued, this situation created an important private life in the UK.

However, the Home Office was not sufficiently impressed by this, and they refused her application. Again she appealed to the First-Tier and Upper Tribunals but again unsuccessfully and this time she took her case to the higher courts and ultimately to the Supreme Court.

The core issue is that the relevant legislation says that “little weight” should be attached to private life established when a migrant is in the UK (a) unlawfully or (b) when their immigration status is “precarious”. Precarious is a funny word: it has a rather emotive character. What does it mean in this context? Well, to put it short, the Supreme Court provided a broad definition: a migrant’s status is precarious if they have any kind of limited leave. So if you have not got settlement or not yet got settlement then you are in a precarious situation – surely a disturbing thought for many thousands of people.

But there we are, that is now definitively the law, and Ms Rhuppiah, who for much of the time had held immigration leave, was deemed to have been in such a precarious situation.

However, the wheels ground slowly, and time was on her side. In 2017, when she had been in the UK for 20 years, she was able to take advantage of the 20-year rule and she made a successful application. So her case ultimately had a happy ending.

There is one feature which strikes us about this case. Ms Rhuppiah had evidently been given poor legal assistance from her college(s) when they applied for her extension visas. And she evidently did not have the benefit of good legal advice when she was in the process of applying under the 14-year rule. If she had had better legal assistance she could have succeeded much sooner.

It is a very good idea to get legal advice and assistance from a good lawyer, even if your immigration matter appears to be a simple one.

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