Chinese national who was unaware of unlawful immigration status wins appeal for review of application to remain

The judge in the Court of Session ruled that the Home Secretary “fell into error” in reaching her decision that the petitioner’s second application was not a “fresh claim”.

Lord Glennie (pictured) heard that the petitioner Chennan Fei, 29, was seeking reduction of a decision by the Secretary of State for the Home Department dated 26 March 2017 rejecting her application for leave to remain in the UK and holding that the submissions made on her behalf in the letter from her solicitors dated 24 March 2017 did not amount to a fresh claim within paragraph 353 of the Immigration Rules.

Right to remain

The petitioner, who was born in China and spent the early part of her life there, arrived in the UK in 2002 at the age of 13 as a dependent of her parents, who arrived in country lawfully but by December 2004 they no longer had leave to remain and the petitioner’s right to remain, which was dependent on theirs, fell away.

Thereafter the petitioner’s presence in the UK was unlawful, though she was not told this by her parents and was “wholly ignorant” of it until sometime in 2012.

From the time of her arrival with her parents in 2002, the petitioner was brought up in the UK, attending school and university and achieving good results.

She had never been back to China, had no contact with relatives in China and although she was able to speak Mandarin she could not read or write Mandarin with any fluency.

She no longer had any real contact with her parents; since about 2011 she had been living in Glasgow with a British national whom she referred to as her “godmother”.

Unlawful immigration status

Her unlawful status in the UK only came to light in 2012 when she applied for an internship while in her fourth year of studying at university, and after consulting solicitors she sought asylum.

The claim for asylum was not insisted upon, but the petitioner sought leave to remain both under the Immigration Rules and, outwith the Rules, on the ground that she had established a “private life” in the UK, which was protected by Article 8 of the European Convention on Human Rights (ECHR).

That claim was refused in January 2015 and both her appeal to the First-tier Tribunal failed and an application for permission to appeal to the Upper Tribunal were refused, as was an application to court for judicial review of that refusal.

Testimonials

In March 2017 the petitioner made a further application for leave to remain, which was supported by statements and testimonials from a wide range of individuals, including her MP and MSP.

More significantly, testimonials came from staff at the Green Party and at the Refugee Council, all showing that she had “contributed significantly” to those organisations as a volunteer – since graduating from university she had been unable to get employment due to her immigration status – and was held in “high regard”.

Her application was also supported by evidence that over the last year or so she had formed a relationship with a British citizen (DH).

Her application was considered both within the Immigration Rules and, separately, under Article 8 ECHR, but by letter dated 26 March 2017, the Secretary of State rejected her claim under both heads.

In terms of paragraph (vi) of paragraph 276ADE of the Immigration Rules, the Secretary of State concluded that there were no “very significant obstacles” to her integration into China.

In terms of Article 8, her claim to remain based on the private life she had built up in the UK was also rejected, under reference in particular to section 117B(4) and (5) of Part 5A of the Nationality Immigration and Asylum Act 2002, which provides that “little weight” should be given to a private life established by a person at a time when they were in the UK “unlawfully” or when their immigration status was “precarious”.

In the decision letter of 26 March 2017 the Secretary of State not only rejected the claim for leave to remain, but also held that the petitioner’s submission did not amount to a fresh claim for the purposes of paragraph 353 of the Immigration Rules.

Right to a private life

The effect of that decision was that the petitioner had no right of appeal against the refusal of leave to remain, but she challenged the decision.

The judge observed that in a case where there exist “particularly strong features of private life”, the “’little weight’ approach may be departed from”.

“Similarly, so it seems to me,” Lord Glennie added, “the court or tribunal is entitled, in its consideration of the ‘little weight’ approach in sections 117B(4) and (5), to consider whether it would be disproportionate in human rights terms to afford little weight to a private life established during a period when the person was unaware (and reasonably so) that his or her presence in the United Kingdom was unlawful”.

The judge therefore granted the petition to the extent of reducing the determination by the Secretary of State in the letter of 26 March 2017 that the petitioner’s submissions as set out in the letter of 24 March 2017 do not amount to a fresh claim.

In a written opinion, Lord Glennie said: “In so far as this contributed to her decision that the new submissions did not constitute a fresh claim because they did not create a realistic prospect of success – and it is clear that it did contribute to that decision – that decision is open to review.

“Were the matter to be considered by a newly constituted FTT, that tribunal would not be bound to approach the matter in the same way as the previous tribunal – indeed it would be bound to apply the decision of the Court of Appeal in Rhuppia and assess the petitioner’s private life Article 8 claim on the basis that it might deserve to be given more than ‘little weight’, possibly substantial weight, if the tribunal considered that it was sufficiently compelling as to merit a different approach and/or if the tribunal considered that it was disproportionate and unduly harsh to do otherwise given that the private life was, in the main, established at a time when the petitioner, having entered the United Kingdom as a child and being dependent on her parents in her early years in the United Kingdom, was ignorant of her unlawful status.

“If it came to the conclusion that these matters justified a departure from the ‘little weight’ approach in this case, then the tribunal would be free to make a proper assessment of that private life in all its various manifestations and also to take into account other matters already relied on by the petitioner in her previous application, including the difficulties that the petitioner would face in trying to establish a new life in China. It is not possible to say that in those circumstances the petitioner’s Article 8 claim would necessarily fail.”