Definition of “precarious immigration status” and “financial independence”

The Supreme Court, in the case of Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58, clarified the definition of “precarious immigration status” and “financial independence”.

Ms. Rhuppiah, moved to the UK more than twenty years ago in September 1997, as a student. She was living under student visa until the end of November 2009 and thereafter applied for ILR under 10 years long residency rule. Her application was refused because of the several short periods of overstaying in between extensions of her leave to remain, which was mishandled by her college. She remained in the UK illegally from October 2010 until July 2012. Thereafter, she applied for ILR on the basis of living 14 years long residency in the UK. But she submitted the wrong application form and her application was invalidated. In August 2012, Ms Rhuppiah resubmitted her application, but was refused, as the Immigration Rules changed in July 2012 and the qualifying period to get ILR was changed from 14 to 20 years. In September 2017, Ms. Rhuppiah received ILR on the basis of 20 years of residence. She also claimed to be the guardian of her close friend since her study years and he was her sponsor.

The tribunal ruled out that “precarious immigration status” is any legal status preceding to grant of ILR. This definition plays a particularly important role under section 117B (5) of the Citizenship, Immigration and Asylum Act 2002. In other words, it is extremely difficult to succeed outside of Immigration Rules based on Human Rights grounds, relying on the fact of private life in the UK while the applicant has a “precarious status”.

In the previous court case of AM (S 117B) Malawi [2015] UKUT 260 (IAC), the Supreme Tribunal considered that any legal status prior to receiving ILR is considered “precarious”. However, if the Secretary of State revokes ILR or citizenship due to deception or criminal conduct then the status of the applicant will be “precarious” again.

In the interest of society and in particular for the economic welfare of the United Kingdom, immigrants who plan to become British nationals must be financially independent. The Supreme Court explained the meaning of this phrase as being not financial dependent on the state. Consequently, in the context of the aforementioned court case of Ms. Rhuppiah, the applicant is not considered financially dependent, provided that she receives financial support from a third party (in this case her studies friend). It is inevitable that at some point the sponsorship may cease, but the applicant can start employment as he will have stable immigration status.

Posted in English on Nov 27, 2018.