KO (Nigeria) [2018] UKSC 53 and Rhuppiah [2018] UKSC 58

The case of KO (Nigeria) [2018] UKSC 53 and Rhuppiah [2018] UKSC 58 plays an important role towards Tribunal’s decision, whether a removal direction is lawful in line with Article 8 ECHR. By the Immigration Act 2014, Parliament introduced Part 5A to the Nationality, Immigration and Asylum Act 2002 which seeks to direct courts and tribunals as to how to conduct this balancing exercise. KO (Nigeria) and Rhuppiah are the first cases in which the Supreme Court has had to consider these provisions. In doing so, the Supreme Court has largely continued to narrow the scope of protection provided for migrants in the UK by Article 8.

Rhuppiah [2018] UKSC 58 concerned s 117B(3) and (5). Mrs Rhuppiah, a Tanzanian national, entered the UK in 1997 with leave to remain for 3 months in 1997. She was granted various other periods of leave to remain, although sometimes with breaks between her visas during which time she was in the UK unlawfully. While studying at college, Mrs Rhuppiah met Ms Charles who suffers from a gravely debilitating illness. Mrs Rhuppiah lives with Ms Charles and provides care gratuitously to her. Mrs Rhuppiah’s leave to remain expired in 2009 and she had not been able to obtain a visa since then. She applied for leave to remain on the basis that her removal would breach her art 8 rights. The Secretary of State disagreed. The First-tier Tribunal upheld the Secretary of State’s decision, giving little weight to her private life, under s 117B(5) on the basis that it was established, it said, at a time when her status was “precarious”. Additionally, the First-tier Tribunal considered that Mrs Rhuppiah was not “financially independent” to which it is required to have regard under s 117B(3).

Happily for Mrs Rhuppiah, the long duration of the proceedings meant that before the appeal to the Supreme Court was heard, she had achieved continuous residence in the UK for 20 years, which provided her with another route to remain under the Immigration Rules. Nevertheless, the Supreme Court decided that it was appropriate to hear and determine the appeal which raised issues of wide application.