In R (on the application of Sision) v Secretary of State for the Home Department IJR [2016] UKUT 00033 (IAC), the Upper Tribunal has found for the first time that in making an immigration decision, the Secretary of State must take account of whether the decision might be incompatible with the right to respect for the private life of third parties. In this respect, the decision extends the House of Lords’ decision in Beoku-Betts v SSHD [2008] UKHL 39 regarding family life rights to cover private life rights as well.
In Sison, the applicant was a Philippine national who worked as a carer. She had arrived in the UK as a work permit holder but had overstayed when her leave expired. Following the expiry of her leave, she obtained employment with a couple, the Josts, who were in their early 90s. Mrs Jost suffered from Alzheimer’s disease. After six months in the Josts’ employment, Ms Sison applied for leave to remain based on her carer’s role. The Home Office refused that application. Ms Sison sought judicial review of that decision in the Upper Tribunal, and was granted permission to do so.
At the full judicial review hearing, the Tribunal rejected Ms Sison’s claim. Her claim was argued on three grounds: (1) that there had been a failure by the Secretary of State to consider all relevant considerations and overlook the relevant material; (2) that the decision was incompatible with the private life of Mrs Jost; and (3) that the Secretary of State had failed to take into account her carers policy. The Tribunal had no difficulty in dismissing the claims under grounds (1) and (3). However, ground 2 presented the Tribunal with more difficulty.
It has been settled law since the House of Lords’ decision in Beoku-Betts that a Tribunal hearing an appeal by an individual who relies upon his or her right to respect for their family life under Article 8 ECHR should consider the family as a unit and consider the impact upon the family life of the other members of that family unit. However, Ms Sison sought to extend the application of Beoku-Betts to claims based upon private life. In particular, her counsel argued that the Secretary of State was obliged to take account of the fact that her decision might be incompatible with Mrs Jost’s Article 8 right to respect for her private life.
Ms Sison based this argument upon the effect that her removal would have on Mrs Jost. Ms Sison was responsible for Mrs Jost’s care at night. Her husband was unable to care for her by himself, and there was evidence that it would be difficult for Mrs Jost to cope with a new carer and that the Josts had been unable to find another carer instead of Ms Sison. It was therefore argued that removing Ms Sison would have a serious impact upon Mrs Jost’s private life rights.
The Home Office argued that the family life principle in Beoku-Bettscould not be transferred to private life claims. However, the Tribunal rejected this argument. It saw no reason in principle why private life between two individuals could not be seen in the same way as family life in an appropriate case. It pointed to the fact that adult siblings often had private life but not family life interests between them, and it thought it would be strange if their joint private life could not be considered if one was to be removed. The Tribunal also rejected an argument by the Home Office that Mrs Jost could not be a “victim” under the Human Rights Act 1998. The Tribunal observed that the House of Lords had found in Beoku-Betts that each affected family member was to be regarded as a victim. It saw no reason why this reasoning could not apply to a private life “victim” as well.
The Tribunal therefore accepted that the Beoku-Betts principle extended to private life and went on to consider the effect of Ms Sison’s removal on Mrs Jost. However, it went on to dismiss the application because it did not accept that the decision to remove Ms Sison breached Mrs Jost’s Article 8 right. It found that alternative carers were available. Noting the fact that Ms Sison was an overstayer, and had no basis to stay under the Immigration Rules, it found that there was a significant public interest to be weighed against any interference with Mrs Jost’s rights and that any such interference would therefore be proportionate.
Although this decision constitutes a welcome extension of Beoku-Betts to private life cases, the ultimate outcome shows that it will be difficult in most cases to satisfy the courts that removal which would interfere with the private life rights of a third party would breach Article 8.