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Further Guidance from the Courts on Article 8 post Rhuppiah

The Court of Appeal has just handed down judgement in SA (Afghanistan) [2019] EWCA Civ 53. The ruling is significant for two reasons.

First, the Court appeared to acknowledge that the stage at which an individual’s private life was developed could impact the assessment of whether the little weight provisions (s.117B Nationality Immigration and Asylum Act 2002) should be applied with full force; however, it declined to rule authoritatively on the issue. This appears to suggest that the exceptional cases envisaged by the Supreme Court in Rhuppiah were confined to those where there were particularly strong features of private life:

“It is also clear from the quotation from Lord Wilson’s judgement on the second issue [in Rhuppiah] that there will be cases, notwithstanding the limited weight that can be attached to the private life of those whose immigration status is precarious, which have ‘particularly strong features of the private life’ that will outweigh ‘the normative guidance’ in s.117A(2)(a) and s.117B(5). It is perhaps unhelpful to talk in terms of a children being ‘blamed’ for a developed private life in this country during formative years, while their immigration status is precarious. There is no question of ‘blame’. However, once an assessment is made that article 8 is engaged, and a further assessment must be made as to whether removal will interfere with the private life, the weight attached to the private life is to be weighed in accordance with the statutory criteria.” (Para 31)

Second, and more helpfully the Court agreed that rejection of a protection need (under Article 15C of the Qualifications Directive, with regard to the establishment of conditions of internal armed conflict) would not determine whether it could be said country conditions are capable of amounting to a very significant obstacle to integration, for the purposes of an assessment under paragraph 276ADE(1)(vi). It considered though that the position on Article 15C may be taken as a starting point.

These are separate issues and must be addressed separately, nevertheless, a decision on Article 15(c) may be relevant. As Lord Bannatyne recognised: “Thus, in considering whether there are very significant obstacles to integration in the circumstances of this case, it is proper to take as a starting point the position as regards Article 15(c).”


Want to know more?

I will be delivering ‘PRACTICAL TIPS FOR HUMAN RIGHTS CLAIMS (KO NIGERIA & RHUPPIAH)‘ for HJT on 19th March 2019! You may book your place here! Or by contacting the HJT office on 0203 766 3860.

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