Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/39030/2014

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
On 6 December 2016
On 8 December 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN
& UPPER TRIBUNAL JUDGE DOYLE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

STEVEN RICHARD FORMAN
Respondent

For the Appellant: Mr M Matthews, Senior Home Office Presenting Officer
For the Respondent: Mr K McGuire, Advocate, instructed by Latta & Co, Solicitors

DETERMINATION AND REASONS
1. The parties are as described above. However, as we are now remaking the determination of the FtT, which has been set aside, and as this was the terminology conveniently adopted by both representatives in written and oral submissions, the rest of this determination refers to parties as they were in the FtT.
2. The appellant is a citizen of the USA, born on 4 August 1946.
3. On 25 September 2014 the respondent made a decision which sets out paragraph 276ADE of the immigration rules and explains as follows:
On 22 July 2014 you applied for leave to remain in the UK ?
? your application has been refused.
The family life you claim to have with your godchildren does not constitute "family life" as set out in appendix FM of the immigration rules. The claim has therefore been assessed solely on the basis of your private life ?
Decision under private life
? You are a national of the USA and you entered the UK on 13 September 2007. You have therefore lived in UK for 6 years and not ? for at least 20 years ? and fail to meet the requirements of paragraph 276ADE (1) (iii) ?
In order to meet the requirements of paragraph 276 ADE (1) (vi) an applicant must show that they are aged 18 and above and that there would be very significant obstacles to their integration into the country to which they would have to go ? It is not accepted that there would be very significant obstacles to your integration in the USA ? because you state in your application that you have family, social and financial ties in your home country ?
Decision on exceptional circumstances
It has been considered whether your application raises any exceptional circumstances which, consistent with the right to respect for private and family life contained in article 8 of the ECHR, might warrant consideration ? of a grant of leave to remain in the UK outside the requirements of the rules. It has been decided that it does not.
? you have raised the fact that you are unable to switch to the tier 2 (skilled migrant) point based system route because you are unable to meet the "appropriate salary" requirements ? This is not a reason ? sufficiently compelling or compassionate enough to reach the high threshold required for a grant of leave outside the rules.
You have provided evidence ? of your various accolades as a professional musician and academic achievements as a PhD student of the Royal Conservatoire of Scotland. You submitted a sizeable number of supporting letters from various academics and music professionals ? While it is acknowledged that you currently enjoy living, working and studying in the UK as a highly skilled migrant, this is not give you the right to do so on an exceptional basis. It is clear that you have substantial personal and professional ties in the USA and own property and assets there.
The Secretary of State is satisfied that you have provided ? no compelling or compassionate reasons why you should be granted leave to remain outside the rules and is therefore not prepared exercise her discretion in your favour ?
4. On 1 October 2014 the appellant gave notice of appeal to the FtT, on these grounds:
(i) The decision is not in accordance with the immigration rules.
(ii) The decision is otherwise not in accordance with the law.
(iii) The decision beaches the appellant's rights to private life (article 8 ECHR).
5. The grounds are general and unenlightening. The appellant has since abandoned (i) and (ii), and now advances his case on the basis of (iii) only.
6. Designated FtT Judge MacDonald allowed the appellant's appeal by decision promulgated on 5 January 2015.
7. The SSHD appealed to the Upper Tribunal. In a decision promulgated on 19 June 2015 (which should be read as if incorporated herein) the UT (the President, the Hon Mr Justice McCloskey, and UT Judge Macleman) found material errors of law in the determination of the FtT, and set it aside. Parties were directed to make submissions in writing on whether the decision should be remade within the UT; on the necessity for a further hearing; and on whether there would be any application for further evidence to be adduced under rule 15 (2A).
8. In a response dated and received on 3 July 2015 the appellant said that the decision should be remade in the UT, by way of a de novo assessment, for which purpose there should be a further hearing, and that the appellant did not wish the UT to consider any evidence that was not before the FtT and hence made no application under rule 15 (2A).
9. In a response also dated 3 July 2015, but having had sight of the appellant's submissions of that date, the SSHD agreed that it would be appropriate for a further hearing to take place before the UT, for oral submissions to be made. The SSHD also did not wish the UT to consider any evidence that was not before the FtT.
10. The UT issued a direction dated 31 August 2015 for the redetermination of the appeal to be undertaken in the UT "on the first available date ? before an appropriately constituted panel".
11. There was there after an unfortunate delay, due to administrative oversight, until the case was listed to come before us on 6 December 2016.
12. The parties provided and exchanged further written submissions on the remaking of the decisions, which, as expanded upon orally at the hearing, are summarised below.
13. We do not set out the principal private life provisions of the rules, paragraph 276ADE, because the appellant now accepts that he cannot meet those requirements, and the distance by which he fell short is shown in the respondent's decision which we have quoted; but that is a significant part of the backdrop.
14. Part 5 A of the 2002 Act, introduced by section 19 of the Immigration Act 2014 and in force since 25 July 2014, establishes a regime under the heading "Article 8 of the ECHR: Public Interest Considerations". Section 117A provides:

(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts-
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2) In considering the public interest question, the court or tribunal must (in particular) have regard-
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

(3) In subsection (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).

Section 117B, embraced by the cross heading "Article 8: Public Interest Considerations Applicable in All Cases", provides:

(1) The maintenance of effective immigration controls is in the public interest.

(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.

(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.

(4) Little weight should be given to-
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
?
15. Section 117B (6), relating to cases of parental relationship, and section 117C, relating to cases involving foreign criminals, do not apply.
16. The submissions of Mr Maguire derive also from the Human Rights Act 1998. By virtue of section 1 and Schedule 1, one of the Convention rights protected under domestic law is article 8. By section 6 (1):
It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

17. Both parties have approached this case throughout on the basis that in terms of section 117B (5) the appellant's private life in the UK was established at a time when his immigration status, although lawful, was precarious. That assumption is in line with AM Malawi [2015] UKUT 260, with Deelah [2015] UKUT 515 and with Rhuppiah v SSHD [2016] EWCA Civ 803, where the Court said:
35. For each individual grant to the appellant of leave to enter or remain, the period of the grant was specifically limited to the comparatively short and clearly delimited period required for the completion of a course of study on each occasion. When each grant of leave was made, the appellant specifically stated that her intention was to leave at the end of her period of study. On the occasion of her application in each case, she may have had a hope that her leave might be extended when it came to an end if she could find another study course, but she had no guarantee that she would be able to do so and no guarantee that the same Immigration Rules would be in place when she made her further application. The hope, if she had one, of possibly eventually being in a position to apply for ILR was still more remote and tenuous. The position, therefore, in respect of each application for leave to enter or for an extension of her leave to remain was that the appellant had a stated intention to leave the UK at the end of the comparatively short period of leave requested, and only a speculative hope that she might be permitted to stay for longer at that point.
36. On any proper interpretation of section 117B (5) this was an immigration status which was precarious, and the FTT was correct so to hold. This view also accords with that of McCloskey J sitting in the Upper Tribunal in Deelah and others (section 117B - ambit) [2015] UKUT 00515 (IAC) at para. [33].
18. We note that at paragraph 44 in Rhuppiah the Court expressed doubts about whether any grant of leave short of indefinite leave to remain qualifies as "precarious" for purposes of section 117B (5), but the authorities are clear for present purposes.
19. Mr Maguire in oral submissions confirmed that we were to treat the appellant's status as precarious for purposes of section 117B (5). He said that the appellant might pose an argument that his status should be classified as finite but not precarious, but that would have to be developed, if necessary, at a higher level.
20. That point was the first of the three grounds of appeal in Rhuppiah. The third ground went to section 117B (2) (proficiency in English) and section 117B (3) (financial independence). The appellant does not now contend that these are more than neutral factors in this case, in line with the UT's earlier findings.
21. The second ground of appeal in Rhuppiah is pertinent for our purposes, so we set out in full its resolution by Sales LJ, with whom the other two members of the Court concurred:
Ground (ii): the interaction of section 117A (2) and section 117B (5)
45. It is common ground that the starting point for consideration of the proper construction of Part 5A of the 2002 Act is that sections 117A-117D, taken together, are intended to provide for a structured approach to the application of Article 8 which produces in all cases a final result which is compatible with, and not in violation of, Article 8. In that regard, both sides affirmed the approach to interpretation of Part 5A to ensure compliance with Article 8 as explained by this court in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662, in particular at [26] and [31].
46. This is an important point when considering the interaction of section 117A (2) and sections 117B and 117C. It is possible to conceive of cases falling within section 117B (4) (unlawful presence in the UK) or section 117B (5) (precarious immigration status in the UK) in which private or family life (as appropriate) of an especially strong kind has been established in the host country such that it should be accorded great weight for the purpose of analysis under Article 8: Jeunesse v Netherlands is a prime example. Mr Southey correctly submitted that the provisions in Part 5A had to be construed in such a way as to accommodate this sort of case. Mr Byass accepted that this is so. However, Mr Southey and Mr Byass proposed different ways to interpret the statute to ensure that this objective is satisfied.
47. Mr Southey submitted that in section 117A(2) the use of the formula, "the court or tribunal must ? have regard [to]" the considerations listed in section 117B or in section 117C, as the case may be, in considering the public interest question - that is to say, the question whether an interference with a person's right to respect for private and family life is justified under Article 8(2): see section 117A(3) - means that the court or tribunal is not bound in all cases to follow what Parliament says in those provisions. He submitted that this was the effect of the use of this formula in other statutory contexts, such as where a statute provides that a decision-maker must have regard to guidance or a code of practice: see R (London Oratory School) v The Schools Adjudicator [2015] EWHC 1155 (Admin); [2015] ELR 335, in particular at [58].
48. In that case Cobb J held that the Schools Adjudicator had a discretion whether to follow certain guidance issued by the relevant Roman Catholic Diocese, to which he was required to have regard; had acted correctly to the extent that he looked to see if there were good and proper reasons for declining to act in accordance with that guidance; but had applied too high a threshold when he had decided he should follow the guidance unless there was "a compelling reason" not to do so: see [58] and [62]-[64]. At para. [64], Cobb J said that a "compelling reason" test would be apposite in relation to a context requiring regard to be had to statutory guidance, as in R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58; [2006] 2 AC 148. In Munjaz it was said that there should be "cogent reasons" or "cogent reasons ? spelled out clearly, logically and convincingly" to depart from such guidance: see at [20] and [68]-[69] per Lord Bingham and Lord Hope, respectively.
49. In my judgment, Mr Southey's general submission goes too far. One needs to ask with clarity and precision, to what does section 117A (2) require regard to be had? Section 117A (2) does not have the effect that, for example, a court or tribunal has a discretion to say that the maintenance of effective immigration control is not in the public interest, in direct contradiction of the statement of public policy by Parliament in section 117B (1). Where Parliament has itself declared that something is in the public interest - see sections 117B (1), (2) and (3) and section 117C (1) - that is definitive as to that aspect of the public interest. But it should be noted that having regard to such considerations does not mandate any particular outcome in an Article 8 balancing exercise: a court or tribunal has to take these considerations into account and give them considerable weight, as is appropriate for a definitive statement by Parliament about a particular aspect of the public interest, but they are in principle capable of being outweighed by other relevant considerations which may make it disproportionate under Article 8 for an individual to be removed from the UK.
50. Another type of consideration identified in Part 5A to which regard must be had under section 117A (2) is the statement in section 117C (6) that "the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2" (my emphasis). There is a similar requirement in section 117C (3), on its proper construction: see NA (Pakistan) v Secretary of State for the Home Department at [23]-[27]. In these provisions, Parliament has actually specified what the outcome should be of a structured consideration of Article 8 in relation to foreign criminals as set out in section 117C, namely that under the conditions identified there the public interest requires deportation. The "very compelling circumstances" test in section 117C (3) and (6) provides a safety valve, with an appropriately high threshold of application, for those exceptional cases involving foreign criminals in which the private and family life considerations are so strong that it would be disproportionate and in violation of Article 8 to remove them. If, after working through the decision-making framework in section 117C, a court or tribunal concludes that it is a case in which section 117C (3) or (6) says that the public interest "requires" deportation, it is not open to the court or tribunal to deny this and to hold that the public interest does not require deportation.
51. A similar point arises in relation to section 117B (6). Where this subsection applies, Parliament has stated that "the public interest does not require the person's removal" (my emphasis). This court has held that by this provision Parliament has again specified what the outcome should be (i.e. non-removal): see R (MA (Pakistan)) v Secretary of State for the Home Department [2016] EWCA Civ 705, [17]-[20]. It would not be open to a court or tribunal to hold that, contrary to the statement in this subsection, the public interest does require removal.
52. Finally, in a third and distinct category are the considerations identified in section 117B (4) and (5), which state that "little weight should be given to" private and family life in certain circumstances. These are considerations which do not amount to a definitive statement of the public interest, unlike section 117B (1), (2) and (3), and which do not involve a substantive conclusion regarding what the public interest requires when applying Article 8, unlike section 117B (6) and section 117C (3) and (6).
53. Reading section 117A(2)(a) in conjunction with section 117B (5) produces this: "In considering the public interest question, the court or tribunal must have regard to the consideration that little weight should be given to a private life established by a person at a time when the person's immigration status is precarious". That is a normative statement which is less definitive than those given by the other sub-sections in section 117B and section 117C. Although a court or tribunal should have regard to the consideration that little weight should be given to private life established in such circumstances, it is possible without violence to the language to say that such generalised normative guidance may be overridden in an exceptional case by particularly strong features of the private life in question, where it is not appropriate in Article 8 terms to attach only little weight to private life. That is to say, for a case falling within section 117B (5) little weight should be given to private life established in the circumstances specified, but that approach may be overridden where the private life in question has a special and compelling character. Such an interpretation is also necessary to prevent section 117B (5) being applied in a manner which would produce results in some cases which would be incompatible with Article 8, i.e. is necessary to give proper effect to Parliament's intention in Part 5A; and a similar interpretation of section 117B (4) is required, for same reasons. (Mr Byass' own suggestion, that the words "Little weight" in sub-sections 117B (4) and (5) should be read so as to mean "great weight" should be attached to private or family life in an appropriate case seemed to me to be linguistically untenable, although directed to the same outcome of achieving compatibility with Article 8).
54. In my view, reading section 117A (2) and section 117B (5) together in this way, as is appropriate, means that considerable weight should be given to Parliament's statement in section 117B (5) regarding the approach which should normally be adopted. In order to identify an exceptional case in which a departure from that approach would be justified, compelling reasons would have to be shown why it was not appropriate. That is a significantly higher threshold than was urged upon us by Mr Southey by reference to the London Oratory School case. There is a considerable difference between a statement by Parliament itself as to what the usual approach should be and the Diocesan guidance at issue in that case. The threshold to displace the ordinary rule in section 117B (5) in the present context cannot be less than that to justify a decision not to follow statutory guidance as in the Munjaz case. Identification of the test as one of compelling circumstances differentiates the position in an appropriate way from that applicable in relation to foreign criminals, in relation to which a test of "very compelling circumstances" applies.
55. I turn from this discussion of the proper interpretation of sections 117A (2) and 117B (5) to consider whether the FTT erred in law in adopting the approach it did at paras. [60] and [63] of its decision, set out above, in saying that it was required by statute to attach little weight to the appellant's private life established in the period when she was the beneficiary of a series of grants of leave to enter or remain as a student, and hence had a precarious immigration status for the purposes of section 117B (5). In my judgment, the FTT did not err in its approach.
56. Here it is important to remember that before the FTT the appellant's then representative (not Mr Southey) did not propose the interpretation of sections 117A (2) and 117B (5) urged by Mr Southey on the appeal and which to a material degree I have found to be correct, as explained above. Before the FTT, the appellant did not contend that her case was one involving special circumstances to justify a departure from the approach set out in section 117B (5). Rather, her argument was that her immigration status at the relevant time was not "precarious", which argument the FTT correctly dismissed. In the absence of any argument that if the appellant's immigration status was precarious, there were nonetheless special reasons why the guidance in section 117B (5) should be treated as overridden, the FTT was left with a situation in which section 117B (5) did indeed require it to give little weight to the private life factors relied on by the appellant, as it said. The FTT cannot be criticised for failing to identify for itself and address the completely different argument now advanced by the appellant for the first time on this appeal.
57. I think it is appropriate to say, however, that even if the FTT had committed an error of law by omitting to consider whether there were compelling circumstances to warrant a departure from the approach set out in section 117B (5), in my view that would not have been a material error of law. I consider that on the facts of this case, set out very clearly by the FTT, there was only one possible answer to that question, i.e. that there were no such compelling circumstances in this case.
22. Parties agreed that there is no reported Scottish case in point.
23. Mr Matthews submitted as follows. Rhuppiah, being the only reported authority in an area of UK jurisdiction, should be followed. It was an example of much longer residence, reliance by a third party upon the appellant, charitable working and financial self-sufficiency, who might well have succeeded in her application but for using the wrong form. Those facts were different but in many ways no weaker than the appellant's, yet the members of the Court agreed there was only one possible answer, and no compelling circumstances. Tier 2 of the points-based system provides detailed rules by which migrants may legitimately undertake employment in the UK labour market. If the appellant's employers thought his work as valuable as claimed, they would be prepared to pay the amount which the migration advisory committee fixed as a reasonable rate for the job. It was not in the public interest that migrants and employers avoid the requirements of the points-based system by seeking leave to remain on private life grounds. The fact that tier 2 had not been adopted as the chosen route carried weight in the assessment of proportionality. It undermined the claimed interference with private life, when a significant aspect of it was the employment with the Royal Conservatoire of Scotland and the state provided an adequate route from which the appellant could benefit, but for his employers' unwillingness to pay. Under reference to Patel and others v SSHD [2013] UKSC 72 and to Nasim and others [2014] UKUT 25, it was doubtful whether the appellant's employment even fell within the scope of article 8 protection. At best his employment was at the outer reaches of the scope of protected private life. The appellant conceded that there were no very significant obstacles to re-establishment of his life in the USA. There was no good reason to say that his private life would be interfered with in a sufficiently serious manner to engage article 8. There was no reason why he could not continue his important work on rhythm theory or why that might not still be used in teaching in Scotland, or why his presence in Scotland was integral to completion and publication of his proposed textbook on the subject. The appellant might be a loss from the music scene in Scotland but that scene existed before his arrival and would continue without him. He relied on his relationship with a close friend and her two children to whom he is godparent, but that was not family life within the legal meaning of the term. It did properly fall within the scope of private life but there was nothing to bring about a disproportionate result in terms of article 8. There was nothing to show that the appellant's private life had such special and compelling character as to outweigh the public interest in the observance of the rules.
24. Mr Maguire submitted that the principle that little weight should be given to a private life established at a time when a person's immigration status is precarious, set out in section 117B (5), was not reflected in and did not form part of the jurisprudence of the European Court of Human Rights. There might be cases where it was inappropriate to apply that principle. Section 117A binds the tribunal only to "have regard" to the considerations listed in section 117B. It remained open to conclude that the strength of a person's private life was such that the principle did not apply. This was the conclusion reached, albeit by a somewhat different route, by Sales LJ in Rhuppiah at paragraph 53. The problem with that approach was that "(a) the reference to 'the private life in question [having] a special and compelling character' suggests that the private life should have an exceptional character, when in fact the 'special and compelling character' may come from the length of the private life and the level of integration; and (b) his Lordship's approach makes no concession for circumstances in which the public interest in removal is lessened by other considerations" (written submission, paragraph 35). The appellant's unique and significant contribution to the community in general lessened the weight of the public interest in his removal and would justify the tribunal disapplying the principle in section 117B (5). To do so would be to do no more than to follow the approach of the Court of Appeal.
25. We found the written submissions somewhat ambiguous as to whether the appellant could succeed consistently with Rhuppiah, or only by a different approach. The position taken is at some points that we should go further than Rhuppiah in choosing to disapply section 117B (5), and at others that the comments by Sales LJ about "overriding the generalized normative guidance therein" are sufficient authority to that effect. In oral submissions Mr Maguire made it clear that if we thought we could not decide in the appellant's favour consistently with Rhuppiah, we were not asked to take a different view of the law. While the appellant reserved his position as to challenging Rhuppiah in any further proceedings, his present contention was that he could succeed consistently with that case. The expression "little weight" in section 117B (5) must admit of some exceptions, otherwise it would do violence to the principles of article 8. The appellant's private life was clearly entitled to significant weight, such that the public interest in removal was lessened, and was outweighed by features of a sufficiently special and compelling nature. We were referred us to the positive comments of the FtT, such as the appellant's "exceptionally strong compelling case to be allowed to remain here", (paragraph 62) and the "unjustifiably harsh consequences" of removal (paragraph 65), as findings of mixed fact and law, which had not been found to be erroneous and which should form the foundation of our further decision.
26. Mr Maguire asked in the alternative that if we did not allow the appeal, it should be remitted to the FtT for rehearing and further analysis.
27. Mr Maguire also submitted that the SSHD should not be permitted at this stage to introduce new arguments. He said that the proposition that the appellant's employment did not fall within the limits of article 8 protection, or did not pass "Razgar question 2", had not previously been put.
28. Mr Matthews in response said that the respondent's arguments on the limited scope for protection of employment through article 8 were before the FtT, although not perhaps in exactly the same form. In any event, it was clear that the UT had already decided there should be an entirely fresh resolution of the case, not restricted by any previous findings, which had been set aside in their entirety. Parties had agreed that the decision was to be remade on the basis of evidence previously tendered and of submissions, so there was no scope for seeking a rehearing in FtT.
29. We now draw the threads together.
30. The earlier decision of the UT is plain. The findings of the FtT have been set aside. We are not bound by anything said there. This is an entirely fresh decision, although based on the same evidence.
31. There no scope for further hearing.
32. There is no dispute about the facts. The appellant came to the UK as a student in 2007 and had lawful leave as such, and then in the post study work category, until he made the application leading to these proceedings. He did so on the explicit basis in his covering letter that he could not move into the tier 2 category because the RCS "did not have sufficient budget to offer a salary ? which would earn the requisite points. The only option left is this ?".
33. The context of the appellant's achievements in his professional and academic careers and of the high personal regard in which he is held is clear. His various accolades were acknowledged by the respondent in her decision, and are again referred to at paragraphs 3 and 4 of our error of law decision.
34. Mr Maguire stressed the comment at paragraph 6 of that decision, "If this were a merits appeal, there could only be one outcome", which he said pointed the way to success; but that has to be read in context. At paragraph 19, the decision observes that but for error of law, the judge "would have been obliged to find unequivocally that the [appellant's] private life in the UK could not be accorded more than slight weight."
35. Parties are not restricted to arguments made previously. In any event, the extent to which the appellant's pursuit of employment fell within article 8 protection was in issue in terms of the application made to the respondent, in terms of the respondent's decision, and in the UT's error of law decision, paragraph 11.
36. We do not find that the appellant's employment, academic and career interests are in principle excluded entirely from the list of factors in his favour; but they are part of the "fuzzy penumbra" of article 8. We do find that they are not capable of contributing much to the eventual finding he seeks, that refusal of further leave to remain in the UK is a breach of his fundamental human right to respect for his private life.
37. We are bound to have regard to the considerations listed in section 117B.
38. It is common ground that the only such consideration of importance is section 117B (5).
39. We find in light of the case law cited above, both of the UT and of the Court of Appeal, that the appellant's private life in the UK was established at a time when his immigration status was precarious.
40. We are bound to give that private life "little weight".
41. There is a little scope for latitude, beyond those bald words of statute, as established in Rhuppiah at paragraph 34 and 35. We cannot broaden the lawful scope any further than that. Its extent is put in slightly different ways, all to similar effect: "particularly strong features of the private life in question, where it is not appropriate in Article 8 terms to attach only little weight"; "private life ? [of] a special and compelling character" (paragraph 34); or "an exceptional case in which a departure from [the normal] approach would be justified", based on "compelling reasons" (paragraph 35).
42. Every case of course turns ultimately on its unique facts, and every appellant may say that his case is exceptional. However, the respondent was justified in referring to Rhuppiah as a case where quite strong facts, if personal merit were the key, came nowhere near the target. Probably there can be no definition of a qualifying case, and one can be recognised only as and when it arises.
43. We consider the extent of the interference with private life which is caused by the decision under appeal. It means that the appellant cannot continue with his part-time work at the RCS, or other part-time work, on the basis of the application which has been refused. It means that he cannot approach his future on the basis of long term residence in the UK, unless he is able to bring himself within the ambit of the rules. There is nothing in his immigration history or in these proceedings which will count against him in any future application. If he moves abroad, he may return as a visitor. We think that is likely, and it would provide for ample contact with his godchildren and friends (who may also visit him). It may be that other avenues within the rules are open to him. There is no great interference.
44. The required labels have been applied in submissions to the facts of this case, but in truth it is only a routine example of the operation of the rules; disappointing no doubt to the appellant and his many supporters, but no more than that. We find nothing in terms of an article 8 right which might entitle us to depart from the "normal approach".
45. The appellant's undoubted personal merits, even outstanding personal merits, do not entitle us to make a decision in his favour. They do not constitute an exceptional or compelling circumstance in terms of identifying a breach of his fundamental human rights, or endowing him with a right to remain in the UK, irrespective of compliance with the immigration rules.
46. Little weight being given to the appellant's private life, we must remake the decision thus: the appeal, as originally brought by Dr Forman to the FtT, is dismissed.

7 December 2016
Upper Tribunal Judge Macleman