United Kingdom: Secretary of State must reconsider Sri Lankan national’s rejected application for leave to remain

Monday, October 14, 2019

On 4 October 2019, the Upper Tribunal (Immigration and Asylum Chamber) published its ruling concerning the removal of a Sri Lankan national from the United Kingdom despite established family ties.
The applicant arrived in the UK in January 2010 on a student visa before meeting her husband the following year, marrying in August 2012, and having their first child in October 2012. The husband had limited leave to remain until 2018. The applicant’s claim to asylum on human rights grounds was rejected and an appeal was brought against the decision, by which time the couple had a second child. The circumstances of the family materially changed again after the husband was granted indefinite leave to remain in August 2018.

The Upper Tribunal held that the First-Tier Tribunal Judge had erred in their consideration of the Article 8 family life rights by using a capability test, i.e., deciding that because the family could return they should return. In doing so, the First-Tier Tribunal had erred in its consideration of the rights of the children, and the potential impact on the rights of the family. The Upper Tribunal ruled that even if practicable and feasible for a person to return, a proportionality test must be correctly applied to assess a fair balance between the State’s interest in immigration control and the interests of the applicant and the family.

In light of evidence showing material changes to the family, and the tangible and strong social links the family had established in the UK that would be impacted if the applicant alone or the family was returned to Sri Lanka, the Upper Tribunal held that the Secretary of State must reconsider the applicant’s asylum application under human rights grounds.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.

Family member
Family unity (right to)