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The Home Secretary determines to exercise his power to remove a foreign national from the UK.
The foreign national contends that the determination is unlawful on the ground that her removal would violate her right to respect for her private life under article 8 of the European Convention on Human Rights and section 6(1) of the Human Rights Act 1998 (the 1998 Act).
Section 117B(5) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) provides that little weight should be given to a private life which she established at a time when her immigration status was precarious.
What does the word precarious mean in this context? This is the primary question posed by the present appeal.
Introduction
The foreign national is Ms Rhuppiah.
On 22 August 2014, in the First tier Tribunal, First tier Tribunal Judge Blundell (to whom I will refer as Judge Blundell) reluctantly dismissed her challenge under article 8 to the Home Secretarys determination, dated 6 June 2013, to remove her from the UK.
Judge Blundell concluded that her private life in the UK had been established at a time when her immigration status had been precarious within the meaning of section 117B(5), which had come into force less than a month earlier; and he considered himself in effect bound by the subsection to dismiss her appeal against the determination.
Her further appeals to the Upper Tribunal and then to the Court of Appeal both failed.
By its decision dated 2 August 2016, [2016] EWCA Civ 803, [2016] 1 WLR 4203, the Court of Appeal (Sales LJ, who gave the substantive judgment, and Moore Bick LJ and Sir Stephen Richards, who agreed with it) upheld Judge Blundells conclusion that the establishment of Ms Rhuppiahs private life in the UK had occurred at a time when her immigration status had been precarious.
Now she appeals against the decision of the Court of Appeal.
Within the well known structure of article 8, the primary question arises as part of the inquiry into whether the proposed interference with Ms Rhuppiahs private life in the UK is proportionate.
Therefore, in determining this appeal, this court, like the Upper Tribunal and the Court of Appeal, must ask itself whether Judge Blundell was wrong to hold that at the relevant time her immigration status had been precarious: see the judgment of Lord Carnwath in R (R) v Chief Constable of Greater Manchester Police [2018] UKSC 47, [2018] 1 WLR 4079, paras 53 to 64.
As it happens, Ms Rhuppiahs appeal has recently become academic.
This occurred on 9 February 2018; and explanation of it requires reference to the Immigration Rules HC 395 (the rules).
The Home Secretary has set out in the rules, indorsed by Parliament, the provisions which, in his opinion reflective of his policy, should in principle govern his determination of claims to resist removal from the UK on the part of those in breach of immigration laws by reference to their right to respect for their private or family life under article 8.
He recognises, however, that his obligation under section 6 of the 1998 Act, like that of a court hearing an appeal against his determination when based on article 8, is to act compatibly with rights under article 8 and that such compatibility may not always coincide with compatibility with his rules.
So, like the courts, the Home Secretary has to allow for the possibility that a person may be entitled to resist removal under article 8 even when he or she cannot do so under the rules.
But article 8 itself, as interpreted by the European Court of Human Rights (the ECtHR), confers upon the relevant policy maker, who in the UK is the Home Secretary, a limited discretion in relation to the determination of claims made under it.
So, when a person claims to resist removal by reference to article 8 outside the rules, the Home Secretary is entitled, and a court hearing an appeal against his determination is required, to weigh in the balance against the claim the fact that it could not have succeeded under the rules: see the judgment of Lord Reed in R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11, [2017] 1 WLR 823, at paras 46 and 47.
In these proceedings Ms Rhuppiah has been resisting removal by reference to article 8 outside the rules.
What happened on 9 February 2018 was that the Home Secretary decided that she had recently become able to resist removal by reference to article 8 under the rules.
As I will explain, Ms Rhuppiah entered the UK on 16 September 1997 and has lived here continuously ever since.
Paragraph 276ADE(1) of the rules specifies the requirements to be met by an applicant for leave to remain in the UK on the ground of private life in the UK; and they include, at (iii), that he or she has lived continuously in the UK for at least 20 years.
It follows that on 16 September 2017 Ms Rhuppiah began to satisfy the requirement at (iii); she also satisfied the other requirements.
Paragraph 276BE(1) provides that, if the requirements of para 276ADE(1) are satisfied, the Home Secretary may grant leave to remain in the UK for up to 30 months; and para 276DE provides that, if an applicant has remained in the UK with continuous leave on the ground of private life for at least ten years, he or she may be granted indefinite leave to remain.
Thus it was that by letter dated 9 February 2018, the heading of which referred to Private Life Rules, the Home Secretary (to whom, for convenience, I will throughout refer as male) informed Ms Rhuppiah that he had granted her leave to remain in the UK for 30 months; that she could apply for further limited leave prior to the end of that period; and that, in the event that she were to complete at least ten years of continuous residence pursuant to leave to remain on the ground of her private life, she might then be eligible for a grant of indefinite leave to remain in the UK.
The result is that the Home Secretary then granted to Ms Rhuppiah all that she could have hoped to achieve in the present proceedings.
Thought then turned to the utility of any further prosecution of the present appeal.
In the event the court agreed with the parties that the appeal should proceed.
The court agreed that it was of general importance for it to offer a definitive interpretation of the word precarious in section 117B(5) of the 2002 Act.
It is also now clear, as both parties agree, that in any event the First tier Tribunal (and indeed the Court of Appeal) fell into error in a different respect and that, irrespective of whether it was material, the error requires to be rectified: see paras 51 to 57 below.
So the appeal has proceeded.
Were this court to conclude that the First tier Tribunal had been wrong in a material respect to dismiss Ms Rhuppiahs appeal against the Home Secretarys determination dated 6 June 2013, it would allow her appeal in the normal way and set aside the tribunals order.
That would render Ms Rhuppiahs appeal against it undecided.
But there is now no need for it to be decided.
So the court would not remit it to the tribunal for fresh determination.
The Facts
The relevant facts can be taken from a determination of conspicuous clarity and sensitivity made by Judge Blundell following a substantial oral hearing.
Ms Rhuppiah is a Tanzanian national, now aged 45.
She lived in Tanzania until 1997, when she entered the UK with leave to reside here as a student for three months.
Her mother and one of her brothers still reside in Tanzania.
Her father works for the UN in Sudan and regularly sends money to the UK for her support.
Her other brother lives in Basingstoke; and he has a daughter, aged nine, with whom she is on close terms.
There would, however, be no significant obstacle to the re integration of Ms Rhuppiah into society in Tanzania.
The Home Secretary granted further leave to Ms Rhuppiah to reside in the UK as a student on no less than 12 occasions.
The final grant expired on 30 November 2009.
But six of these further grants were made pursuant to applications made after the previous leave had expired.
Responsibility for the delay usually lay with the college to which Ms Rhuppiah had entrusted the task of making the applications on her behalf.
In making her applications for further leave to reside in the UK as a student, Ms Rhuppiah was required to demonstrate an intention to leave the UK at the end of her studies.
On each occasion she did so to the satisfaction of the Home Secretary.
In cross examination before the tribunal she accepted that she always expected to be required to leave the UK at some point.
As a result of her extensive studies in the UK, Ms Rhuppiah, who speaks English fluently, gained a variety of qualifications in business studies and associated fields.
In November 2009, at the time of the expiry of the final grant of leave, Ms Rhuppiah applied for indefinite leave to remain in the UK on the ground of continuous lawful residence in the UK for at least ten years pursuant to what was then para 276B(i)(a) of the rules.
The trouble was that her continuous residence had not always been lawful.
The Home Secretary refused her application and the First tier Tribunal dismissed her appeal against the refusal.
When, on 11 October 2010, the Upper Tribunal refused to grant her leave to appeal against the dismissal, Ms Rhuppiah became an unlawful overstayer in the UK.
Judge Blundell observed that, had it not been for the ineptitude of her college in failing to make timely applications for further leave on her behalf, her application for indefinite leave to remain would probably have succeeded.
Ms Rhuppiahs next attempt to apply for indefinite leave to remain in the UK met further ill fortune.
On 1 July 2012 she applied on the ground of continuous residence in the UK (whether or not lawful) for at least 14 years pursuant to what was then para 276B(i)(b) of the rules.
But she applied on the wrong form and enclosed an insufficient fee.
So on 12 July her application was returned to her.
On 24 July she re applied.
But by then, namely on 9 July, the rules had been amended so as to delete para 276B(i)(b) (Statement of Changes in Immigration Rules HC 194).
Judge Blundell observed that Ms Rhuppiah was justified in feeling cheated but he correctly held that a near miss was irrelevant.
He cited Patel v Secretary of State for the Home Department [2013] UKSC 72, [2014] AC 651, in which, at para 53, Lord Carnwath cited with approval an observation that a miss was as good as a mile.
When, belatedly, the Home Secretary addressed Ms Rhuppiahs re application dated 24 July 2012, he inevitably determined that it could not succeed under the rules.
He proceeded to consider whether it should succeed on a basis outside the rules, by reference to her right to respect for her private life under article 8.
His determination on that basis was also negative; and such has been the basis on which in these proceedings she has challenged the lawfulness of his determination to remove her from the UK.
There is a striking feature of the private life established by Ms Rhuppiah in the UK.
It concerns her friendship with Ms Charles.
She lives in the home of Ms Charles, which is, or was at the time of their oral evidence to Judge Blundell, in London.
Ms Charles is highly qualified in the field of IT and works as a systems engineer for Ministry of Defence projects and often in Bristol.
Ms Rhuppiah met Ms Charles when they were studying at the same college and they have resided together since 2001.
But it is not suggested and there is no need to consider whether it might have been suggested that Ms Rhuppiah pursues family life with Ms Charles within the meaning of article 8.
Ms Charles suffers from ulcerative colitis, a gravely debilitating condition.
She suffers frequent symptoms of diarrhoea, nausea, inability to eat, anaemia, fatigue, joint pain and reduced mobility.
She has had multiple admissions to hospital.
She is heavily dependent on Ms Rhuppiah both physically and emotionally.
Ms Rhuppiah cooks such food as Ms Charles can eat and accompanies her to Bristol, to hospital and in effect everywhere.
Ms Charles has ceded control of her financial affairs to her.
Instead of paying her for looking after her in these respects, Ms Charles provides her with largely free board and lodging.
Judge Blundell found that Ms Rhuppiah, who is a Seventh Day Adventist, cares for Ms Charles out of friendship, faith and habit.
He found that, were Ms Rhuppiah to leave the UK, Ms Charles would have to turn to the state to meet her need for care; that her physical health and her ability to continue to work in Bristol would be compromised, at least in the short term; and that her life would be turned upside down.
Sections 117A and 117B
Section 117B(5) falls within Part 5A of the 2002 Act, which was inserted into it, with effect from 28 July 2014, by section 19 of the Immigration Act 2014.
Part 5A is headed Article 8 of the ECHR: Public Interest Considerations.
Unfortunately it is necessary to set out a substantial amount of Part 5A, as follows: 117A Application of this Part (1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts (a) breaches a persons right to respect for private and family life under article 8, and as a result would be unlawful under (b) section 6 of the Human Rights Act 1998.
In considering the public interest question, the (2) court or tribunal must (in particular) have regard in all cases, to the considerations listed in (a) section 117B In subsection (2), the public interest question (3) means the question of whether an interference with a persons right to respect for private and family life is justified under article 8(2). 117B Article 8: public interest considerations applicable in all cases (1) The maintenance of effective immigration controls is in the public interest.
It is in the public interest, and in particular in the (2) 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 are less of a burden on taxpayers, and (a) (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 private life, or a relationship formed with a qualifying (a) (b) 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 persons immigration status is precarious. (6)
It will be seen that the considerations in each of the first five subsections of section 117B are all entitled public interest considerations.
On any view the considerations in the first three subsections relate to the public interest in the removal of a person present in the UK contrary to immigration law.
At first sight, however, one might consider that the considerations in the fourth and fifth subsections relate to the strength of the case which might weigh against that public interest.
The explanation for their inclusion as public interest considerations lies in the wide definition of the public interest question set out in section 117A(3) above.
See Deelah (section 117B ambit) [2015] UKUT 00515 (IAC), paras 18 and 21.
Section 117B(4) is not engaged in the present case: it is agreed that Ms Rhuppiah established her relevant private life in the UK, in particular her role in caring for Ms Charles, long before 2010 and at a time when her presence here was predominantly lawful.
Nevertheless it may be helpful to note the reference to a qualifying partner in section 117B(4)(b) and to glance at the definition of that phrase in section 117D(1).
It means a partner who is a British citizen or who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 see section 33(2A) of that Act).
Section 33(2A) defines a person as settled in the UK if he is ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain.
Insofar as the courts inquiry into the meaning of a precarious status in section 117B(5) may be seen in what follows to require contrast with the meaning of a settled status, it may be helpful to bear in mind the definition of the word settled brought by section 117D(1) into the 2002 Act itself.
At last this judgment can proceed to address the primary question, namely the meaning of the word precarious in section 117B(5).
Section 117B(5)
Ms Rhuppiah accepts that a persons immigration status in the UK can be precarious when he or she is lawfully present in the UK; otherwise subsection (5) of section 117B would add nothing to subsection (4).
She suggests that, for example, asylum seekers pending determination of their applications and lawful visitors to the UK probably have a precarious immigration status.
But she contrasts their situation with that of persons who, albeit with a right to remain which is time limited, have a reasonable hope of permanent settlement in the UK or who (as is suggested by Richard Warren, Private life in the balance: constructing the precarious migrant, Journal of Immigration, Asylum and Nationality Law (2016) 124, 130) are on a potential path to settlement.
She contends that, with the grant to her of long periods of leave to reside as a student, she fell into the latter category.
Hope that circumstances might change to enable her to continue to live in the UK did not, says Ms Rhuppiah, invalidate her intention, when seeking extensions of her visa, to depart from the UK at the end of her studies.
That a potential path to settlement was open to her is, she contends, made clear by the fact that she came close to securing it both in 2010 and in 2012.
The Court of Appeal rejected Ms Rhuppiahs argument, along the lines of the above, that her immigration status prior to 2010 was not precarious.
But, when it turned to the Home Secretarys contrary argument, which was and is that all leave short of indefinite leave to remain in the UK gives rise to a precarious status, the court expressed provisional doubt.
Sales LJ said at para 44: There is a very wide range of cases in which some form of leave to remain short of ILR may have been granted, and the word precarious seems to me to convey a more evaluative concept, the opposite of the idea that a person could be regarded as a settled migrant for article 8 purposes, which is to be applied having regard to the overall circumstances in which an immigrant finds himself in the host country.
Some immigrants with leave to remain falling short of ILR could be regarded as being very settled indeed and as having an immigration status which is not properly to be described as precarious.
Such being the parameters of the issue surrounding the primary question, we must seek guidance in authority, first that of the ECtHR.
It was in its admissibility decision in Mitchell v United Kingdom, (Application No 40447/98) 24 November 1998, that the ECtHR appears first to have used the word precarious in the context of an application under article 8.
It rejected, as manifestly ill founded, a British citizens application that her husbands deportation to Jamaica had violated her right to respect for her family life.
Her husband had been admitted to the UK as a visitor for six months; and for the following five years, in the course of which the applicant had married him, he had remained in the UK unlawfully.
The court said, at p 4: An important though not decisive consideration will also be whether the marriage was contracted at a time when the parties were aware that the immigration status of one of them was such that the persistence of the marriage within the host state would from the outset be precarious.
The court considers that where this is a relevant consideration it is likely only to be in the most exceptional circumstances that the removal of the
non national spouse will constitute a violation of article 8
In its numerous subsequent reiterations of the consideration identified in the Mitchell case the ECtHR has adapted it so as to extend to cases in which the context of the alleged family life was not a marriage.
So the question became whether family life was created at a time when the parties were aware that the immigration status of one of them was such that the persistence of family life within the host state would from the outset be precarious: see, for example, Rodrigues da Silva, Hoogkamer v Netherlands (2007) 44 EHRR 34, para 39.
In that case a mother and her young daughter relied on their family life together.
At all times the mothers stay in the Netherlands had been unlawful and she had given birth to the daughter there.
It is implicit in the courts judgment that the persistence of their family life in the Netherlands was therefore known to be precarious and that it was only by virtue of exceptional circumstances that the court held article 8 to have been violated.
In what circumstances beyond those in which a participant in the family life was known to be present in the state unlawfully, would its persistence there be precarious?
61292/00) 11 April 2006, the ECtHR said, at p 9: In its admissibility decision in Useinov v Netherlands (Application No it is the applicants submission that he was allowed to live in the Netherlands pending the proceedings on his asylum application and his subsequent application for a residence permit for compelling reasons of a humanitarian nature, ie a total period of just over five years.
However, the court is of the view that this cannot be equated with lawful stay where the authorities explicitly grant an alien permission to settle in their country.
Therefore, the applicants stay in the Netherlands was precarious for most of it, and illegal for the remainder.
The court proceeded to hold, in apparent reference to the discussion in the Mitchell case, that there were no exceptional circumstances giving rise to a violation.
The final sentence of the above passage in the Useinov case presents a slight complication in that it pitches the word precarious into a slightly different context from that in which it had been placed in the Mitchell case, from which the court had just quoted.
For in the final sentence the court analysed whether the applicants stay had been precarious, not whether the persistence of family life there had been known to be precarious.
In that slightly different context it distinguished between a precarious stay, permitted by the state but only pending its determination of outstanding applications, and an illegal stay.
Had the court instead asked whether the persistence of family life had been known to be precarious, it would surely have answered affirmatively in relation both to the precarious and to the illegal periods of the applicants stay.
The more useful part of the above passage is in the distinction drawn between permission to stay pending determination of applications, which makes persistence of family life during that period precarious, and permission to settle, which (by implication) does not do so.
The distinction was reaffirmed in Nnyanzi v United Kingdom (2008) 47 EHRR 18, para 76.
The case of Butt v Norway (Application No 47017/09) 4 December 2012, sheds further light on the circumstances in which the persistence of family life would be precarious.
The family life of the applicant siblings in Norway had been created at a time when, with their mother, they had been granted a settlement permit which was later withdrawn because the mother had obtained it by the provision of false information.
The court held at para 79 that, to the mothers knowledge, the persistence of their family life was precarious but at para 90 that there were exceptional circumstances which gave rise to a violation.
But the most helpful decision of the ECtHR on this topic is that of the Grand Chamber in Jeunesse v Netherlands (2015) 60 EHRR 17.
The applicants husband and their three children were Dutch nationals.
But her family life with them in Holland was created at a time when, as a national of Suriname, her right to reside in Holland was no more than tolerated by the state pending its protracted determination of her various applications for residence permits and of her consequential appeals.
The court held that, to her knowledge, the persistence of their family life there was precarious.
In para 102 it echoed the contrast drawn in the Useinov and Nnyanzi cases with a grant of permission to settle.
In para 104 it proceeded as follows: The instant case may be distinguished from cases concerning settled migrants as this notion has been used in the courts case law, namely, persons who have already been granted formally a right of residence in a host country.
A subsequent withdrawal of that right, for instance because the person concerned has been convicted of a criminal offence, will constitute an interference with his or her right to respect for private and/or family life The significance of the passage mainly lies in the word withdrawal, which sheds light on the nature of the right of residence which the Grand Chamber had in mind.
For, as Sales LJ himself suggested in para 39 of his judgment, a right of residence which can be withdrawn, for instance because of a criminal conviction, is, in particular, a right of residence pursuant to indefinite leave to remain.
In relation to applications under article 8 arising prior to the introduction of section 117B(5), both the Home Secretary, in his Instructions to case workers, and the courts of England and Wales duly sought to take into account the consideration identified by the ECtHR in the Mitchell case and later adapted.
For example in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) Sales J rejected the applicants challenge to the lawfulness of a determination to remove him to India on the basis that persistence of his family life in the UK with his cohabitant had from the outset been precarious.
In fact at all material times the applicant had been in the UK unlawfully; so the basis for the judges decision was obvious and he was not required precisely to discern the boundary between when persistence of family life was and was not precarious.
In the Agyarko case, cited in para 4 above, the appellants had also formed the relevant relationships while they had been unlawfully in the UK.
But it is worthwhile to note the way in which Lord Reed expressed himself in a judgment with which the other members of the court agreed.
Having in para 49 addressed the Jeunesse case, he suggested in para 51 (and in effect repeated in para 54) that persistence of family life would be precarious if created when an applicant was in the UK unlawfully or was entitled to remain in the UK only temporarily.
In para 45 of his judgment in the present case Sales LJ recorded that it was common ground that the starting point for consideration of the proper construction of Part 5A of the 2002 Act is that sections 117A 117D 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.
This remains common ground; and it is clearly correct.
But, insofar as the legislation is intended in all cases to produce a result compatible with the article, we will need to find somewhere within it provision for a degree, no doubt limited, of flexibility.
It is obvious that Parliament has imported the word precarious in section 117B(5) from the jurisprudence of the ECtHR to which I have referred.
But in the subsection it has applied the word to circumstances different from those to which the ECtHR has applied it.
In particular Parliament has deliberately applied the subsection to consideration only of an applicants private life, rather than also of his family life which has been the predominant focus in the ECtHR of the consideration identified in the Mitchell case.
The different focus of the subsection has required Parliament to adjust the formulation adopted in the ECtHR.
Instead of inquiry into whether the persistence of family life was precarious, the inquiry mandated by the subsection is whether the applicants immigration status was precarious.
And, because the focus is upon the applicant personally and because, perhaps unlike other family members, he or she should on any view be aware of the effect of his or her own immigration status, the subsection does not repeat the explicit need for awareness of its effect.
Apart from the judgment of Sales LJ in the present case, the leading authority on the meaning of the word precarious in section 117B(5) is the decision of the Upper Tribunal given by Deputy Upper Tribunal Judge Holmes on behalf of himself and Mr CMG Ockelton, the Vice President, in AM (S117B) Malawi [2015] UKUT 260 (IAC), [2015] Imm AR 5.
The appellant, a citizen of Malawi, entered the UK in 2006 on a student visa.
In 2007 his wife and daughter joined him from Malawi.
In 2011 a second daughter was born.
The immigration status of his wife and daughters was dependent upon his status.
In 2012 the final extension of his student visa expired.
The Home Secretary determined to remove all four members of the family to Malawi.
The appellant challenged the determination by reference to the private life of each of the four of them.
He could not rely on their right to respect for their family life because the proposed removal of all of them together would not interfere with it.
The Upper Tribunal upheld the conclusion of the First tier Tribunal that their private lives in the UK had been established when their immigration status had been precarious within the meaning of section 117B(5) and that his appeal against the determination to remove them should be dismissed.
In explaining its decision the Upper Tribunal (a) noted at para 20 that, prior to the introduction of section 117B(5), the word precarious had been applied both in the ECtHR and in domestic courts not only to the status of a person lawfully present for a limited period but also to the situation of a person unlawfully present; (b) considered however at para 23 that Parliament had in section 117B(4) and (5) drawn a sharp distinction between a person in the UK unlawfully and one whose immigration status was precarious, with the result that, under the statute, a precarious immigration status did not include the situation of a person unlawfully present; (c) held at para 27 that all those granted a defined period of leave to remain in the UK, including discretionary leave to remain as well as leave of limited duration, had a precarious immigration status, even if they had a legitimate expectation that their leave would ultimately be extended indefinitely; (d) therefore at para 32 formulated its central decision as being that a persons immigration status was precarious for the purpose of section 117B(5) if his continued presence in the UK would be dependent upon a further grant of leave; and suggested at para 33 that even a grant of indefinite leave to remain (e) might render the persons status precarious if the grant had been obtained by deception or if he or she had embarked on a course of criminal conduct which would justify its withdrawal.
In the Deelah case, cited in para 21 above, McCloskey J, sitting in the Upper Tribunal as its President, stressed at paras 17 and 29 that in the case before him no issue arose as to whether the immigration status of the appellants had been precarious.
As an aside, however, at para 30, he described as clear and concise the central decision which in the AM case the same tribunal had recently reached (see para 39(d) above) and advised judges and practitioners constantly to be alert to it.
The court understands that, contrary to the law report of the decision of the Court of Appeal in the present case, the AM case was cited to it.
At all events, for whatever reason, Sales LJ does not appear to have had in mind the strong indorsement in that case of the Home Secretarys contention that, for the purposes of section 117B(5), a person has a precarious immigration status if he or she has leave to remain in the UK which is other than indefinite.
The provisional view of Sales LJ, set out in para 25 above, was that leave to remain short of indefinite leave might sometimes confer on a person a status not properly to be described as precarious; and that the concept of precariousness might fall to be applied having regard to the persons overall circumstances.
The view of Sales LJ is entitled to great respect.
In para 36 above I have recognised the need for a degree, no doubt limited, of flexibility in the application of Part 5A of the 2002 Act.
But I will shortly explain how, elsewhere, the statute does permit a limited degree of it.
I do not consider that the ordinary meaning of the word precarious requires, or that in its context Parliament must have intended the word to require, that its application to the facts of a case should depend upon a subtle evaluation of the overall circumstances such as Sales LJ had in mind.
The bright line interpretation of the word precarious in section 117B(5), commended by the specialist tribunal with the maximum weight of its authority, is linguistically and teleologically legitimate; and, for that matter, it is consistent with the way in which the ECtHR expressed itself in the Jeunesse case (see para 34 above) and in which this court expressed itself in the Agyarko case (see para 35 above).
The answer to the primary question posed by the present appeal is therefore that everyone who, not being a UK citizen, is present in the UK and who has leave to reside here other than to do so indefinitely has a precarious immigration status for the purposes of section 117B(5).
It follows that Judge Blundell, upheld on this point in both the successive appeals, was correct to determine that Ms Rhuppiahs private life in the UK, having been established when, at any rate predominantly, she had leave to reside here as a student, was established at a time when her immigration status was precarious.
Irrelevant though it is, it may be worthwhile to note that even since 9 February 2018 her immigration status has been precarious.
Although she no doubt reasonably entertains a hope that in 2028 she may secure indefinite leave to remain, her present leave is to do so for 30 months: see para 6 above.
Another helpful feature of the Upper Tribunals decision in the AM case was its conclusion that the concept of a precarious immigration status under section 117B(5) did not include the situation of a person present in the UK unlawfully: see para 39(b) above.
It is well arguable in principle that a person unlawfully present has an immigration status to that effect and that, of course, it is precarious.
But in subsections (4) and (5) of section 117B Parliament has drawn a clear distinction between unlawful presence and a precarious immigration status.
In relation to a person unlawfully present, subsection (4) covers all the ground (indeed, at (4)(b), more than all the ground) which subsection (5) would cover; and there is nothing to indicate that, notwithstanding the clear distinction, Parliament intended subsection (5) to overlap with subsection (4).
The facts of the present case do not enable this court to appraise the further suggestion in the AM case that even a grant of indefinite leave to remain might yield a precarious immigration status in the circumstances identified at para 39(e) above.
The reader will however have noted that the suggestion derives partial support from the decision of the ECtHR in the Butt case, summarised at para 33 above.
It would be reasonable for this court to expect that its indorsement today of the conclusions in the AM case at paras 43 and 44 above will make it easier for decision makers to decide whether an immigration status was precarious at the relevant time.
In Ahmed v Secretary of State for the Home Department [2014] EWHC 300 (Admin) Green J observed, at para 44, that there was an element of precariousness but not a very strong one.
In Secretary of State for the Home Department v Thierno Barry [2018] EWCA Civ 790 Singh LJ observed at para 62 that the respondents position was not entirely precarious.
Neither case required consideration of section 117B(5); both courts were seeking outside the statute to weigh the consideration identified by the ECtHR in the Mitchell case in their appraisal of rights under article 8.
It is, however, to be hoped that decision makers will no longer need to wrestle with degrees of precariousness.
Section 117A(2)(a)
It was in section 117A(2)(a) of the 2002 Act that Parliament introduced the considerations listed in section 117B.
So, in respect of the consideration in section 117B(5), Parliaments instruction is to have regard to the consideration [that] [l]ittle weight should be given to a private life established by a person at a time when the persons immigration status is precarious.
McCloskey J suggested in para 23 of the Deelah case, cited in para 21 above, that the drafting wins no literary prizes.
But, as both parties agree, the effect of section 117A(2)(a) is clear.
It recognises that the provisions of section 117B cannot put decision makers in a strait jacket which constrains them to determine claims under article 8 inconsistently with the article itself.
Inbuilt into the concept of little weight itself is a small degree of flexibility; but it is in particular section 117A(2)(a) which provides the limited degree of flexibility recognised to be necessary in para 36 above.
Although this court today defines a precarious immigration status for the purpose of section 117B(5) with a width from which most applicants who rely on their private life under article 8 will be unable to escape, section 117A(2)(a) necessarily enables their applications occasionally to succeed.
It is impossible to improve on how, in inevitably general terms, Sales LJ in his judgment described the effect of section 117A(2)(a) as follows: 53.
Although a court or tribunal should have regard to the consideration that little weight should be given to private life established in [the specified] 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
There was lively argument before the Court of Appeal about whether Judge Blundell understood the effect upon section 117B(5) of section 117A(2)(a), then recently enacted, and, if not, whether the advocates (none of whom appeared in this court) had failed to give him the necessary assistance in that regard.
For he concluded that he was required by statute to attach little weight to the aspects of her private life upon which Ms Rhuppiah relied and that he was bound to conclude that the harsh consequences which will flow from [her] removal are justified.
In the light of the now academic nature of the present appeal there is no need for this court either to explore this issue or to appraise the firm conclusion of Sales LJ at para 57, at first sight slightly surprising, that there were no such particularly strong features of Ms Rhuppiahs private life as would justify departure from the result indicated by section 117B(5).
Section 117B(3)
Section 117B(3) of the 2002 Act, set out in para 20 above, provides that it is in the public interest, and in particular in the interests of the economic well being of the UK, that persons who remain here are financially independent.
Then the subsection proceeds to give two reasons why their financial independence is in the public interest.
Judge Blundell held that, in that she was dependent on support from her father and from Ms Charles, Ms Rhuppiah was not financially independent and that this was a further consideration, negative to her claim under article 8, to which he was required to have regard.
The Court of Appeal, at paras 63 64, upheld his analysis and in doing so rejected the submission on behalf of Ms Rhuppiah that persons were financially independent for the purposes of section 117B(3) if they were not financially dependent upon the state.
The Home Secretary now agrees with the submission which was made, and which continues to be made, on behalf of Ms Rhuppiah about the meaning of financial independence in section 117B(3); but he adds uncontroversially that the evidence of support from third parties has to be credible and the support reliable.
This is the agreed area of error into which Judge Blundell and the Court of Appeal fell, to which reference was made in para 7 above.
The Home Secretary has changed his mind about the meaning of financial independence following the decision of this court in R (MM (Lebanon)) v Secretary of State for the Home Department [2017] UKSC 10, [2017] 1 WLR 771, which post dated the decision of the Court of Appeal in the present case.
In the MM and linked cases this court considered the financial requirements imposed by the rules upon non EEA family members wishing to join their relatives in the UK.
The court held that adherence to the rules, which had sought to exclude reliance on promises of third party support even if credible, might precipitate a violation of article 8.
The rules were changed accordingly.
The parties are correct to join in submitting to this court that financial independence in section 117B(3) means an absence of financial dependence upon the state.
Why would it be in the public interest that they should not be financially dependent on other persons? Why would it in particular be in the interests of the economic well being of the United Kingdom that they should not be dependent on them? Sales LJ suggested, at para 64, that the financial support provided to Ms Rhuppiah by her father and Ms Charles might cease, whereupon the obligation to maintain her would probably fall upon the state; but a cessation of a persons employment would probably have the same result.
Indeed the present case is a good example of the sometimes flimsy distinction between employment and third party support.
Anyone other than Ms Rhuppiah who provided extensive caring services to Ms Charles would need to be paid; and it is but an incident of their close friendship and of Ms Rhuppiahs legal inability to have taken employment prior to 9 February 2018 that instead the provision to her has taken the form of largely free board and lodging.
Regard must moreover be had to the first of the two reasons given in section 117B(3) for its statement as to where the public interest lay: because such persons are not a burden on taxpayers.
It was the view of Sales LJ at para 65 that, if the phrase financially independent referred to independence of the state, the quoted words were close to tautological.
Had those words been part of the statement as to where the public interest lay, one might more readily have agreed with his view.
But they are not part of the statement.
They are part of the explanation for it and in my view they unequivocally support the construction of section 117B(3) now agreed between the parties.
So Judge Blundell erred in concluding that Ms Rhuppiah was not financially independent within the meaning of section 117B(3).
The further submission on her behalf is and has been that the effect of section 117B(2) and (3) is to cast her ability to speak English and her financial independence as factors which positively weigh in her favour in the inquiry under article 8.
But the further submission is based on a misreading of the two subsections and was rightly rejected by Judge Blundell, upheld by the Court of Appeal, just as an analogous submission was rejected in para 18 of the decision in the AM case, cited at para 38 above.
The subsections do not say that it is in the public interest that those who are able to speak English and are financially independent should remain in the UK.
They say only that it is in the public interest that those who seek to remain in the UK should speak English and be financially independent; and the effect of the subsections is that, if claimants under article 8 do not speak English and/or are not financially independent, there is, for the two reasons given in almost identical terms in the subsections, a public interest which may help to justify the interference with their right to respect for their private or family life in the UK.
In seeking to portray the strength of their private or family life by reference to all their circumstances, claimants may wish to highlight their ability to speak English and/or their financial independence; but the legitimate deployment of such factors in that context is to be contrasted with the erroneous further submission that the subsections propel a conclusion that, where those factors exist, there is a public interest in favour of the claims.
Conclusion
It nevertheless follows that Judge Blundell erred in law in holding that section 117B(3) of the 2002 Act applied to Ms Rhuppiahs appeal and therefore that it identified an aspect of the public interest negative to her claim.
Was his error material? In any event section 117B(5) required him to give little weight to her private life.
But that requirement was subject to section 117A(2)(a), which conferred on him a limited degree of flexibility.
In the absence of his error in relation to section 117B(3), section 117A(2)(a) might properly have led him to uphold her claim, for which he had obvious sympathy.
I propose that we should allow Ms Rhuppiahs appeal to this court and should set aside his order upon her initial appeal; but that, for the reason given in para 8 above, we should not remit her initial appeal for fresh determination.

Output:
Ms Rhuppiah, a Tanzanian national, entered the UK in 1997 with leave to reside here as a student for three months.
The Home Secretary granted further leave to her to reside in the UK as a student on 12 occasions, but some of these applications for leave were made after the previous leave had expired.
While they were studying at the same college, Ms Rhuppiah met Ms Charles, who suffers from ulcerative colitis, a gravely debilitating condition.
They have resided together since 2001.
Ms Rhuppiah cooks food suitable for Ms Charless medical condition and accompanies her to Bristol, to hospital and in effect everywhere.
Instead of paying her for looking after her in these respects, Ms Charles provides her with largely free board and lodging.
Ms Rhuppiah, a Seventh Day Adventist, cares for Ms Charles out of friendship, faith and habit.
Were Ms Rhuppiah to leave the UK, Ms Charless health would be compromised, her life turned upside down, and she would have to turn to the state for care.
After her final grant of leave expired in November 2009, Ms Rhuppiah twice failed to secure indefinite leave to remain in the UK, first because her residence here over the past ten years had not always been lawful, and second because she applied on the wrong form and by the time she reapplied the Immigration Rules, HC395 (the rules) had changed, fatally for her reapplication.
The Home Secretary was then obliged to determine whether her reapplication could nevertheless succeed outside the rules, on the basis of her right to respect for the private life she had established in the UK, including her friendship with Ms Charles, under article 8 of the European Convention on Human Rights.
The Home Secretarys determination on this basis was also negative.
Ms Rhuppiah challenged the Home Secretarys decision at the First tier Tribunal (FTT).
Under section 117B(5) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), little weight should be given to an applicants private life if it was established in the UK at a time when his or her immigration status was precarious.
The FTT dismissed Ms Rhuppiahs challenge on the basis that this provision applied to her; and that, besides, she was not financially independent (another consideration, which section 117B(3) of the 2002 Act required the Home Secretary to weigh against her right to respect for her private life) as she depended on support from her father and from Ms Charles.
Ms Rhuppiah appealed unsuccessfully to the Upper Tribunal and the Court of Appeal.
Her appeal has now become academic, because she has now lived continuously in the UK for long enough to secure leave to remain by a different route.
The Supreme Court nevertheless heard the appeal, because of the public importance of providing a definitive interpretation of the word precarious in section 117B(5).
The Supreme Court unanimously allows the appeal.
Lord Wilson gives the only judgment.
Section 6 of the Human Rights Act 1998 requires the Home Secretary to act compatibly with the rights contained in the European Convention on Human Rights, including the right under article 8 to respect for private and family life.
Removing an applicant from the UK may interfere with this right.
Therefore, if the Home Secretary refuses a persons application for leave to remain in the UK under the rules, he must nevertheless consider whether to grant leave on the basis of their right under article 8.
Article 8 gives him a limited discretion to determine whether the interference is justified [4].
Section 117A(2) of the 2002 Act prompts decision makers exercising this discretion to have regard to the public interest considerations in section 117B, which include: the maintenance of effective immigration controls; that persons in the UK can speak English and are financially independent; and that little weight should be given to a private life established by a person at a time when they are in the UK unlawfully or when the persons immigration status is precarious [20 21].
A persons immigration status in the UK can therefore be precarious even when he or she is lawfully present here [24].
Equally, the concept of little weight and the wording of section 117A(2) give decision makers a limited degree of flexibility to uphold an article 8 claim on the basis of the applicants right to respect for private life, even if it was established when the applicants immigration status was precarious [49].
The Court of Appeal accepted that Ms Rhuppiahs own immigration status was precarious, but suggested that some immigrants could have an immigration status which was not precarious even though they did not have indefinite leave to remain in the UK.
It added that the concept of precariousness might fall to be applied having regard to the persons overall circumstances.
The Supreme Court holds that the application of the concept of precariousness does not depend on such a subtle evaluation of the overall circumstances as suggested by the Court of Appeal [25, 42].
The European Court of Human Rights (ECtHR) has approached the concept of precariousness in the context of the right to family life by asking whether the family life was created at a time when the parties knew that the immigration status of one of them made its persistence in the host state precarious from the outset [28].
Therefore, it distinguished the situation of an applicant who (though not present unlawfully) was no more than tolerated by the host state while it determined her various applications for residence permits and consequential appeals, from that of settled migrants who had formally been granted a right of residence.
The Supreme Court has previously addressed this ECtHR decision, suggesting that family life will be precarious if created when an applicant was here unlawfully or had only a temporary right to remain in the UK [34 45].
Section 117B imports the concept of precariousness from the ECtHR case law.
But the section only applies to an applicants private life [37].
In a case not cited to the Court of Appeal, the Upper Tribunal previously held that a persons immigration status was precarious for the purpose of section 117B(5) if his continued presence in the UK would be dependent upon a further grant of leave [38 39].
The Supreme Court now approves this decision.
Everyone who, not being a UK citizen, is present in the UK and who has leave to reside here other than to do so indefinitely, has a precarious immigration status for the purposes of section 117B(5) [44].
This bright line interpretation is consistent with the ECtHR and Supreme Courts language in the decisions referred to above [43].
The FTT nonetheless erred in concluding that Ms Rhuppiah was not financially independent within the meaning of section 117B(3).
The Supreme Court holds that financially independent in section 117B(3) means not financially dependent upon the state.
It therefore allows Ms Rhuppiahs appeal [52 58].


Input:
The Parliamentary Commissioner Act 1967 created for the first time in the United Kingdom an officer, the Parliamentary Commissioner for Administration, charged with investigating complaints of maladministration against government departments and a limited number of other public authorities exercising the functions of the Crown or controlled or funded by the Crown.
Since then, ombudsmen have come to fulfil an increasingly important role in mediating between the state and the public service on the one hand and the citizen on the other.
Commissioners have been established for complaints against the National Health Service since 1973, for complaints against local government since 1974 and for complaints against social housing landlords since 1996.
There are also separate Commissioners charged with examining complaints against public bodies or the providers of public services in Scotland, Wales and Northern Ireland.
There are currently 19 statutory officers charged with the handling of complaints against government departments, local government, the National Health Service and other public authorities or undertakers.
They are generally known as ombudsmen, after the officer of that title first established in Sweden in 1809.
In some cases, the same person performs the functions of more than one ombudsman, but each role has its own statutory basis.
The various enactments have a strong family resemblance.
But some of them have distinctive features which mean that considerable caution is required before principles derived from one legislative scheme can be read across to another.
In 1969, two ombudsmen were established for Northern Ireland.
The Parliamentary Commissioner Act (Northern Ireland) 1969 established a Northern Ireland Parliamentary Commissioner for Administration (later known as the Assembly Ombudsman for Northern Ireland).
His role and powers were closely modelled on those of the Commissioner established by the United Kingdom Act of 1967.
The Commissioner for Complaints Act (Northern Ireland) 1969 established a Northern Ireland Commissioner for Complaints.
I shall call him the Complaints Commissioner.
He is charged with reporting on complaints against bodies which were not within the jurisdiction of the Northern Ireland Parliamentary Commissioner, notably local authorities, the Northern Ireland Health Board and various public statutory undertakers.
Since 1972, the same person has held both offices.
But until recently (see below) his two roles have had distinct legislative foundations.
It is therefore necessary to have regard to the particular capacity in which an ombudsman is acting and the particular legislation governing that function in order to determine what his powers are.
The current legislation comprises two Orders in Council made on the same day in 1996, which repealed and replaced the corresponding Acts of 1969.
They are the Ombudsman (Northern Ireland) Order 1996 (SI 1996/1298 (NI 8)), governing the work of the Assembly Ombudsman, and the Commissioner for Complaints (Northern Ireland) Order 1996 (SI 1996/1297 (NI 7)), governing that of the Complaints Commissioner.
This appeal is about the powers of the Complaints Commissioner under the latter order, which I shall call the 1996 Order.
In particular it is about his powers in relation to general medical practitioners working in the National Health Service.
In Northern Ireland, as in other parts of the United Kingdom, the National Health Service is one of the main sources of complaints.
The original jurisdiction of the Complaints Commissioner extended to the various boards and committees responsible for the administration of the National Health Service in Northern Ireland.
But it was confined to maladministration and did not extend to any action in the discharge of a professional duty by a medical or dental practitioner, pharmacist, nurse, midwife or member of a profession supplementary to medicine in the course of diagnosis, treatment or care of a particular patient: see the
Commissioner for Complaints Act (Northern Ireland) 1969, Schedule 2, paragraph
That jurisdiction was preserved in the 1996 Order.
But the position was significantly altered by an amendment of 1997, which followed a similar amendment to the United Kingdom legislation.
Its effect was to extend the Complaints Commissioners jurisdiction to the merits of a decision to the extent that it was taken in consequence of the exercise of clinical judgment: see article 8(7) of the 1996 Order as amended. 4.
The main questions at issue in this appeal are whether, and if so in what circumstances, the Complaints Commissioner has power to recommend the payment of a money sum to a complainant; and whether in the event that that sum is not paid he has power to make a special report drawing the attention of the legislature to that fact.
The Northern Ireland Court of Appeal decided that the answer in each case was no.
These questions will shortly become moot.
The Public Services Ombudsman Act (Northern Ireland) 2016 abolishes the offices of both the Assembly Ombudsman for Northern Ireland and the Complaints Commissioner with effect from 1 April 2016, and combines their functions in a new officer, the Northern Ireland Public Services Ombudsman.
The jurisdiction and powers of the new office are in some respects greater than those of either of its predecessors, and his mode of operation different.
But the new Act has no bearing on the present appeal.
The transitional provisions provide for current matters to be transferred to the Public Services Ombudsman, but to be dealt with by him in accordance with the 1996 legislation.
We have been told that there are some 53 reports completed since the decision of the Court of Appeal which have been held back pending the determination of this appeal, and that in four further cases payment of a money sum has been recommended but the recommendation has not been followed.
The facts
The respondent is a general medical practitioner in sole practice in Northern Ireland.
The National Health Service operates in Northern Ireland through a Health and Social Care Board.
The respondent provides general medical services under contract with the board for his area under Part VI of the Health and Social Services (Northern Ireland) Order 1972 (SI 1972/1265 (NI 14)).
This means that complaints against him are liable to be investigated by the Commissioner under article 8 of the 1996 Order.
I shall deal below with the scope of that article.
The complainant is the widow of one of his patients, who has been referred to in this litigation as R. R died on 6 January 2009 of a myocardial infarction.
The complaint concerns the care and treatment received by him during the last eight months of his life.
He attended the respondents surgery on 30 May 2008 to ask for a heart screen.
Although he had no symptoms and was not complaining of chest pains, he was referred to a NHS hospital for a treadmill test.
The test was carried out in July, but terminated early due to fatigue.
The test recorded negative for ischaemic heart disease at the level of exercise attained at the time it was terminated.
A report to this effect was sent to the respondent, whose staff recorded it on the practice computer system, but no action was taken.
On 10 December 2008, R attended the surgery again, this time complaining of chest pains.
He was seen by a locum doctor, who noted typical angina pain but normal treadmill earlier in the year, but again, no action was taken.
R returned to the surgery on 15 December 2008 complaining of further chest pains.
He saw the respondent, who referred him to the Rapid Access Chest Pain Clinic at the same hospital.
The clinic, however, declined to give him an appointment, because the earlier treadmill test had been negative.
They suggested in a report dated 20 December that if any further medical review was required R should be referred to the outpatients department.
Their report arrived at the practice on Christmas Eve, and was input into the practice computer system.
The respondent was on holiday.
The locum was on duty, but she did not review the report because it was not marked urgent.
R returned to the surgery on 6 January 2009 to find out what had happened about the referral to the clinic.
The locum told him that an appointment had been refused, but referred him to the clinic as an outpatient for a treadmill test, as suggested in the report.
He died later that day, before anything had been done to follow up this suggestion.
Mrs R complained to the Complaints Commissioner.
She gave his officials to understand that she was not looking for compensation but wished to understand what had happened.
The Commissioner agreed to undertake the investigation, and in due course reported.
He concluded that the practice had failed to provide a reasonable level of care and treatment.
In particular, he found that it was guilty of maladministration in (i) failing to take action after the treadmill test, (ii) failing to follow up promptly the clinics failure to give R an appointment, and (iii) failing to refer R to the emergency services on 6 January 2009.
He also found that the respondent had acted inappropriately after Rs death in (iv) prematurely assigning responsibility to the hospital, (v) discouraging the family from making a complaint, and (vi) having promised to contact the hospital about Mrs Rs complaint against them, failing to get back to Mrs R after doing so.
The Complaints Commissioner made no finding that these failures caused the death of R, and the facts that he has found do not suggest that they did.
He specifically found that the failure to take appropriate action on 6 January 2009 made no difference to the outcome.
But at para 70 of his report he concluded: I have identified learning points earlier in this report for the Practice and I recommend that [the GP] acts upon them.
I also recommend that the Practice should pay [the complainant] 10,000 in respect of the clearly identified failings in the care provided to [the patient] and the events which consequently followed.
The respondent has apologised to Mrs R and, as the Complaints Commissioners report observes, has put in hand changes to his practices procedures designed to avoid a recurrence of the administrative failings.
But, having taken legal advice, he has declined to pay the money sum recommended, on the ground that he was not legally bound to do so.
The Complaints Commissioner has responded by saying that in that case he was minded to issue a special report to the Northern Ireland legislature reporting the respondents failure to comply with the recommendation.
The Commissioner for Complaints (Northern Ireland) Order 1996
The Complaints Commissioner is empowered to investigate and report on complaints made to him by those claiming to have suffered injustice as a result of the conduct of certain bodies and persons.
The bodies and persons in question, and the matters which he is empowered to investigate are identified by articles 7 to 10 of the Order.
The scheme of these provisions is that article 7 provides for the investigation of complaints about maladministration by any of the bodies listed in Schedule 2.
These are all non departmental public bodies exercising functions conferred on them by statute.
Schedule 2 may be amended by Order, but article 7(3) provides that such an Order may extend its operation only to bodies which either exercise statutory functions or have their expenses substantially defrayed from public funds.
The investigation of Mrs Rs complaint against the respondent was conducted under article 8, which deals with the investigation of complaints against individuals who have undertaken to provide general medical, dental, ophthalmic or pharmaceutical services under Part VI of the Health and Social Services (Northern Ireland) Order 1972 or in certain circumstances those performing personal medical or dental services.
Unlike the bodies whose conduct may be investigated under article 7, the persons liable to be investigated under article 8 are not public bodies.
They are individuals like the respondent providing professional services under contracts or other consensual arrangements with the National Health Service.
The distinction is significant, as I shall explain. article 8(a) provides for the investigation of complaints against independent health and social care providers.
These are not public bodies either.
Like the individuals covered by article 8, they provide services under arrangements with the National Health Service.
Articles 9 and 10 restrict in certain respects the undertaking of investigations authorised under all three preceding provisions.
Article 9 is mainly concerned with the potential overlap between the Complaints Commissioners investigations and other remedies available to the complainant.
Article 9(3) and (4) provides: 9.
Matters not subject to investigation (3) Subject to paragraph (4) and to [section 78 of the Northern Ireland Act 1998], the Commissioner shall not conduct an investigation under this Order in respect of (a) any action in respect of which the person aggrieved has or had a right of appeal, complaint, reference or review to or before a tribunal constituted under any statutory provision or otherwise; any action in respect of which the person (b) aggrieved has or had a remedy by way of proceedings in a court of law. (4) The Commissioner may conduct an investigation
Article 11 provides, in relation to all three categories of investigation: (a) notwithstanding that the person aggrieved has or had such a right or remedy as is mentioned in paragraph (3), if the Commissioner is satisfied that in the particular circumstances it is not reasonable to expect him to resort to or have resorted to it; or (b) notwithstanding that the person aggrieved had exercised such a right as is mentioned in paragraph (3)(a), if he complains that the injustice sustained by him remains unremedied thereby and the Commissioner is satisfied that there are reasonable grounds for that complaint. 11.
Purposes of investigation The purposes of the investigation by the Commissioner shall be to ascertain if the matters alleged in the (a) complaint (i) may properly warrant investigation by him under this Order; (ii) are, in substance, true; and to effect a settlement of the matter (b) where it appears to the Commissioner to be desirable (i) complained of; or if that is not possible, to state what action (ii) should in his opinion be taken by the body concerned, the general health care provider concerned or the independent provider concerned (as the case may be) to effect a fair settlement of that matter or by that body or provider or by the person aggrieved to remove, or have removed, the cause of the complaint.
Articles 15 19 cover (among other things) enforcement.
Three modes of enforcement are provided for.
First, under article 15, the Complaints Commissioner is required to send a copy of the report of his investigation to specified people, including the complainant and the body or person investigated.
Where the investigation is carried out under article 8 into the conduct of an individual health provider, the report must be sent to the National Health Service entity with whom he or she has contracted or arranged to provide the service in question.
That body may take whatever disciplinary or other action is open to it under its arrangements with the practitioner.
Secondly, article 16 provides: 16.
Application for compensation by person aggrieved (1) Where on an investigation pursuant to a complaint under article 7 the Commissioner reports that a person aggrieved has sustained injustice in consequence of maladministration, the county court may, on an application by that person, by order award that person damages to be paid by the body concerned. (3) Damages awarded under this article shall be such as the county court may think just in all the circumstances to compensate the person aggrieved for any loss or injury which he may have suffered on account of expenses reasonably incurred by him in (a) connection with the subject matter of the maladministration on which his complaint was founded; and (b) his loss of opportunity of acquiring the benefit which he might reasonably be expected to have had but for such maladministration. (4) In calculating the amount of damages to be awarded by virtue of paragraph (3)(b) the county court shall apply the same rule concerning the duty of a person to mitigate his loss as applies in relation to damages recoverable at common law.
The third mode of enforcement is provided for by article 17.
The substance of this provision is that where the Complaints Commissioner conducts an investigation under article 7 and reports persistent or systemic maladministration, the Attorney General may, at his request, apply to the High Court for an injunction.
In court proceedings under article 16 or 17, article 18(1)(a) provides that a recommendation of the Commissioner and any report of the Commissioner relating to the complaint in connection with which the recommendation is made shall, unless the contrary is proved, be accepted as evidence of the facts stated therein.
It is, finally, necessary to refer to articles 19 and 21.
They provide as follows: 19.
Reports to the Assembly The Commissioner shall annually lay before the Assembly a general report on the performance of his functions under this Order and may from time to time lay such other reports before the Assembly as he thinks fit. 21.
Disclosure of information by Commissioner Information obtained by the Commissioner or his (1) officers in the course of, or for the purposes of, an investigation under this Order shall not be disclosed except as permitted by paragraph 1(B) or for the purposes of the investigation and any report to be made (a) thereon under this Order; (b) any proceedings for an offence under the Official Secrets Acts 1911 to 1989 alleged to have been committed in respect of information obtained by the Commissioner or any of his officers by virtue of this Order; (c) any proceedings for an offence of perjury alleged to have been committed in the course of an investigation under this Order; (d) an inquiry with a view to the taking of proceedings of the kind mentioned in sub paragraphs (b) and (c); or (e) any proceedings under article 14, 16 or 17.
Power to recommend monetary redress: Article 9(3) and (4)
On the particular facts of this case, there is a short answer to the Complaints Commissioners appeal.
Under article 9(3) of the 1996 Order, he may not carry out an investigation into any actions in respect of which the complainant has a remedy by way of proceedings in a court of law.
This is, subject to article 9(4), a condition precedent to his jurisdiction.
It follows, as a Divisional Court in England held about a similar provision limitation on the powers of the Commissioner for Local Administration under the Local Government Act 1974, that the operation of article 9(3) cannot depend on whether the complainants allegations are well founded.
For the purposes of article 9(3) she has a remedy by way of proceedings in a court of law if, on the assumption that her complaint was justified, she would have a remedy in court: see R v Commissioner for Local Administration, Ex p Croydon London Borough Council [1989] 1 All ER 1033, 1044.
By way of exception to the restriction in article 9(3), article 9(4) provides that the Complaints Commissioner may nevertheless conduct the investigation if he is satisfied that in the particular circumstances it is not reasonable to expect the complainant to resort to law.
This is primarily directed to cases where litigation would not be worth the cost and trouble involved.
But it may also apply in other cases, for example where the complainant is looking for explanations rather than money.
According to the evidence of the Commissioners staff, this was the position of Mrs R.
The Commissioner accepted that the complaint should be investigated because Mrs R said that she was not seeking monetary redress but only wanted to know what had gone wrong.
I agree that that was a proper basis on which to undertake the investigation.
The Commissioner could properly conclude that it would not have been reasonable to expect Mrs R to commence proceedings in court if she was not seeking financial relief.
But if the only basis on which the Commissioner felt able to undertake the investigation at all was that Mrs R did not want money, it could not be proper for him to recommend a payment of money and threaten to report on the respondents failure to pay it.
Power to recommend monetary redress: in general
There is, however, a more fundamental question, which is directly raised by the Court of Appeals judgment, namely whether the Complaints Commissioner has power to recommend monetary redress at all.
The Court of Appeal held that he did not.
If that is correct, it applies irrespective of the basis on which the Commissioner satisfied the conditions in article 9(4).
The starting point is the legal and constitutional status of the Complaints Commissioners reports.
The practice of the United Kingdom government is to comply with the recommendations of statutory ombudsmen unless the department in question can put forward good reasons for not doing so: see Handling of Parliamentary Ombudsman Cases (Cabinet Office, 1996), para 61, and Managing Public Money (HM Treasury, 2013), para 4.12.2.
This corresponds to what has been held to be the position of the United Kingdom government in relation to reports of the Parliamentary Commissioner for Administration.
In R (Bradley) v Secretary of State for Work and Pensions [2008] EWCA Civ 36; [2009] QB 114, the Court of Appeal in England accepted (para 63) that where a minister was responsible to Parliament for the public body in question, he was not bound to accept the Commissioners findings or recommendations, because Parliament cannot have intended to preclude the minister from explaining his rejection of them to Parliament.
Nevertheless, it was held (para 72) that he could not rationally reject them without cogent reasons.
The decision in Bradley raises delicate questions about the relationship between judicial and Parliamentary scrutiny of a ministers rejection of the recommendations of the Parliamentary Commissioner for Administration.
But they are not questions which arise on this appeal, because on any view the principle stated in Bradley cannot be transposed without modification to a case where the Complaints Commissioner recommends financial redress against a medical practitioner.
In the first place, as I shall explain below, the Complaints Commissioner has a very different relationship with the legislature.
Secondly, even in a case where his recommendation is directed to a public body, article 16, which has no equivalent in the United Kingdom legislation, provides for claims to compensation to be determined in adversarial litigation before a court.
The effect is to create a statutory cause of action for maladministration which would not necessarily exist otherwise.
The function of the court is to decide the issue on the merits, and not simply by way of judicial review of the Commissioners report.
The Commissioners recommendations and findings are no more than rebuttable evidence of the facts.
It necessarily follows that the public body in question is entitled to dispute them on any ground which may find favour with a court.
Third, and critically, the recommendation which is challenged in the present case was not directed to a public body.
A general practitioner working in the National Health Service is not a public body, but merely provides services to a public body under a contract or some other consensual arrangement.
The Complaints Commissioner is not a court.
He is an official, albeit an independent one, performing an investigatory and advisory function under statute.
Except in relation to compelling the attendance of witnesses and the production of documents (see article 13 of the 1996 Order), he has no powers of compulsion.
Subject to the terms of the practitioners agreement with the relevant NHS body and to any power of enforcement conferred by the relevant legislation, the Commissioners recommendations are not binding on any one as a matter of private law.
At best, they are legally enforceable only by virtue of the public law duty of a public body not irrationally to reject them.
But that duty is irrelevant to a person in the position of the respondent, who has no relevant public law duties.
The scheme of the 1996 Order, like that of the 1969 legislation which it replaced, is based upon a similar distinction between public and private bodies.
The right of a complainant to claim damages in court under article 16 is limited to cases of maladministration found in the course of an investigation conducted under article 7, ie by one of the public bodies to which that article applies.
The same limitation applies to the right to request the Attorney General to apply for an injunction under article 17.
Similarly, by article 21, the Complaints Commissioner is permitted to disclose information obtained in the course of or for the purpose of an investigation only for limited purposes.
They are conducting the investigation and preparing his report on it, defending himself and his officers against a charge of breach of the Official Secrets Acts, and taking proceedings for perjury or obstruction in the course of an investigation.
The information may also be made available for the purpose of enforcement proceedings under articles 16 and 17, both of which as I have pointed out are limited to investigations conducted under article 7.
Leaving aside the possibility of a special report, to which I shall return, there is no power to use the information for the purpose of enforcement measures of any other kind.
Article 11 of the 1996 Order empowers the Complaints Commissioner to try to effect a fair settlement of the complaint.
If that is not possible, he may state what action should in his opinion be taken by the object of the complaint in order to effect such a settlement.
In a case where the complainant has suffered loss in consequence of the defaults found by the Commissioner, a fair settlement is likely if not certain to require that that loss should be made good.
It follows that if the Commissioner chooses to operate the settlement procedure, and fails to achieve a settlement, he the respondent has accepted must be entitled to recommend in his report a monetary payment sufficient to bring about a fair settlement.
That power is available irrespective of the statutory basis of the investigation, and therefore whether the party investigated is a public or a private body.
But the power is not relevant here, because the Complaints Commissioner never sought to operate the settlement procedure.
If he had done, a settlement might well have been achieved without difficulty, since Mrs R had not sought monetary redress and the Commissioners other recommendations.
Article 18(1)(a) of the 1996 Order provides that the Commissioners recommendations as well as his findings may be relevant to an action for damages against a public body under article 16.
It is arguable that the Complaints Commissioner may also have power to make recommendations that would be relevant in such proceedings.
But since the respondent is not a public body and not amenable to proceedings under article 16, that question does not arise on this appeal and I should prefer to leave it open.
What is clear is that investigations under article 8 into the conduct of persons who are not public bodies are an entirely different matter.
It is one thing for a public officer performing an investigatory and advisory role to recommend a payment out of public funds.
It is another thing altogether for him to recommend the payment by a private individual out of his own pocket of a sum which that individual has no public or private law duty to pay.
Articles 16 and 17, as I have pointed out, have been deliberately limited to investigations under article 7 into the conduct of one of the public bodies identified in Schedule 2.
There is no statutory mode of enforcing a monetary payment against a private contractor to which the Complaints Commissioners recommendation could be relevant.
More generally, a private individual has no means open to him of challenging the Commissioners findings before a court, such as a public body enjoys under article 16, except by way of judicial review, which offers only limited scope for a review of the merits.
I can think of no rational reason why the draftsman of the 1996 Order should have intended that private individuals with no relevant duty of compliance should have a more limited right to challenge the Commissioners report than a public body.
On the contrary, the assumption must have been that the Commissioner would not make recommendations against private individuals of a kind which could have no legal effect directly or indirectly, either under the Order or under the general law.
This is, in substance, what the majority of the Court of Appeal decided.
In my opinion, as applied to investigations under article 8, their conclusion was correct.
Power to make a special report
The Complaints Commissioners main response to this is that his recommendations do not depend for their efficacy on their legal enforceability but on the power of publicity.
By publicising a respondents failure or refusal to comply with a recommendation, he can bring pressure to bear on him to comply notwithstanding the lack of any legal obligation to do so.
This is what the Commissioner hopes to achieve by issuing a special report.
Mr McGleenan QC, who appeared for the Commissioner before us, drew our attention to the observations of Wade and Forsyth, Administrative Law, 11th ed (2014), p 69, about the Parliamentary Commissioner Act 1967: An ombudsman requires no legal powers except powers of inquiry.
In particular, he is in no sense a court of appeal and he cannot alter or reverse any government decision.
His effectiveness derives entirely from his power to focus public and parliamentary attention upon citizens grievances.
But publicity based on impartial inquiry is a powerful lever.
Where a complaint is found to be justified an ombudsman can often persuade a government department to modify a decision or pay compensation in cases where the complainant unaided would get no satisfaction.
For the department knows that a public report will be made and that it will be unable to conceal the facts from Parliament and the press.
I have no difficulty with this proposition as applied to a public body and to the scheme of the United Kingdom Act.
The United Kingdom Parliamentary Commissioner for Administration is an officer of the legislature.
The White Paper which preceded the passing of the 1967 Act (The Parliamentary Commissioner for Administration, Cmnd 1965/2767) observes at para 4, that his office was conceived as supporting the traditional constitutional function of Parliament of receiving the grievances of citizens and holding ministers individually and collectively accountable for their amendment.
The Parliamentary Commissioner in the United Kingdom is empowered to investigate complaints referred to him by a Member of Parliament against government departments and other public bodies identified in Schedule 2: see sections 4 and 5 of the 1967 Act.
He has no power to investigate complaints against private individuals providing services to government departments or public bodies.
The Parliamentary Commissioners practice is, in appropriate cases, to recommend that the department or public body provides financial redress, generally on a compensatory basis.
If the department decides not to comply, he may make a special report under section 10(3), which provides as follows: (3) If, after conducting an investigation under section 5(1) of this Act, it appears to the Commissioner that injustice has been caused to the person aggrieved in consequence of maladministration and that the injustice has not been, or will not be, remedied, he may, if he thinks fit, lay before each House of Parliament a special report upon the case.
In all of these respects, the position of the Assembly Ombudsman for Northern Ireland under the Ombudsman (Northern Ireland) Order 1996 is the same.
Section 10(3) of the 1967 Act of the United Kingdom is reproduced by section 10(3) of the Parliamentary Commissioner Act (Northern Ireland) 1969, and then by article 17(2) of the Assembly Ombudsman (Northern Ireland) Order 1996.
But no corresponding power was conferred on the Complaints Commissioner either by the legislation of 1969 or by that of 1996.
The absence of a power in the Complaints Commissioner to make a special report of the kind which is expressly conferred on the Assembly Ombudsman was not an oversight.
It reflects a significant difference in their constitutional status.
The Assembly Ombudsman, like the United Kingdoms Parliamentary Commission for Administration, is an officer of the legislature.
Under the Ombudsman (Northern Ireland) Order 1996, he may investigate only such complaints as are made by a member of the public to a member of the Assembly and referred by the latter to him: article 9(2).
He reports to the member in question or another appropriate member, as well as to the public body under investigation: article 16.
In keeping with this scheme, the sole mode of enforcing his recommendations provided for by the legislation is a special report to the legislature under article 17(2).
These had also been features of the Parliamentary Commissioner Act (Northern Ireland) 1969.
Their effect is that the Assembly Ombudsmans recommendations are enforceable politically, but they are not enforceable legally save arguably by way of judicial review.
This reflects the fact that the bodies subject to investigation by the Assembly Ombudsman are government departments and public bodies for whom the relevant minister is responsible to the legislature.
The position of the Complaints Commissioner is different.
He is a public officer but he is not an officer of the legislature in the same sense as the Assembly Ombudsman.
Under the 1996 Order, he receives complaints directly from the public: articles 7(7) and 8(5).
He reports to the complainant and to the bodies and individuals whose conduct is at issue: article 15.
There is no power to make a special report to the legislature or to any one else on non compliance with his recommendations.
Instead, his recommendations and findings are legally enforceable by the court by the procedures set out in articles 16 and 17, but only as against public bodies investigated under article 7.
In 1969 and 1996, it was evidently not considered appropriate to confer enforcement powers against private individuals with no relevant duties either in public or private law, whether by way of resort to the courts or by denouncing the recalcitrant party to the legislature.
I do not accept the Complaints Commissioners submission that this deliberate scheme can be circumvented by resort to article 19 of the 1996 Order, which empowers him to lay before the Assembly an annual report on the performance of his functions and such other reports as he thinks fit.
Reports of his investigations are governed by article 15.
The context and the scheme of the legislation, both in 1969 and in 1996, show that article 19 is concerned with general reports on his work, and not with reports on individual cases.
The assumption of the Complaints Commissioner that he can make a special report to the legislature on a failure to comply with his recommendations confuses his two roles, which are legislatively distinct.
The position of the new Public Services Ombudsman under the 2016 Act will be different, because his power to issue a special report is wider: see section 46(2).
But that is not the legislation upon which this appeal turns.
The Commissioners recommendation in this case
I have quoted para 70 of the Commissioners report, in which he recommends a payment by the respondent of 10,000.
The respondent challenges the rationality of that recommendation.
On the view that I have reached about the limits of the Commissioners powers, this question does not arise.
However, I would not like to part with this case without commenting on the fact that the Commissioner thought it appropriate to make a recommendation in these terms, even on the footing that he was entitled to recommend monetary redress at all.
The Commissioners recommendations, in those cases where he is entitled to make them, are discretionary and he has more latitude in arriving at a figure than a court would have.
But a monetary recommendation, like any other, must be rational, and it must be explained.
The only explanation proffered is that the 10,000 should be paid in respect of the clearly identified failings in the care provided to [the patient] and the events which consequently followed.
The report does not explain why these failings warrant a payment of 10,000 or how that figure has been arrived at.
It does not say whether Mr or Mrs R suffered any loss by the failings for which the 10,000 should be treated as compensation.
Some of the failings, notably the failure to take more urgent action on 6 January 2009 are found to have made no difference and others, such as the events which followed Rs death could not in the nature of things have done so.
It is possible that the recommendation was intended as a solatium for injured feelings, but the report does not say so, and in the absence of explanation 10,000 seems to be an excessive amount to recommend on that basis.
On the face of it, the figure has simply been plucked out of the air.
If I had concluded that the Complaints Commissioner had power to recommend a payment by the respondent, I would have regarded this particular recommendation as lacking any rational basis.
Conclusion
For these reasons I would dismiss the appeal.

Output:
A patient, who was clinically asymptomatic at the time, requested that his GP refer him for a heart screen on 30 May 2008.
The GP referred him for an electrocardiogram (ECG) test in July 2008.
The test reported negative for ischaemic heart disease, and no further action was taken.
The patient made further complaints of chest pain to a locum doctor on 10 December 2008, and so his GP referred him to a chest pain clinic 5 days later.
The clinic declined to see him because of his earlier negative test, and sent a report to the practice on 20 December, which was not marked urgent or reviewed.
The patient attended the practice again on 6 January 2009 enquiring as to why he had not received an appointment.
The GP referred him for another ECG, but the patient died of a myocardial infarction later that day.
The patients widow complained to the Northern Ireland Commissioner for Complaints (the Complaints Commissioner).
Following an investigation, the Commissioner held that the practice had failed to provide a reasonable level of care and treatment and was guilty of maladministration.
He recommended that the GP make a payment of 10,000 to the widow.
The GP refused to make the payment, and so the Commissioner indicated that he would lay a special report about the matter before the Northern Ireland Assembly.
The Commissioners recommendation was upheld at first instance but quashed by a majority of the Court of Appeal.
The Commissioner appealed to the Supreme Court.
The Supreme Court unanimously dismisses the appeal by the Complaints Commissioner, holding that the Commissioner had (i) no power to recommend the payment of a money sum against an individual who was not a public authority in an investigation under article 8 of the Commissioner for Complaints (Northern Ireland) Order 1996 and (ii) no power to make a special report drawing the attention of the legislature to such a persons failure to comply with a recommendation.
Lord Sumption gives the judgment, with which the other Justices agree.
The Complaints Commissioners power to investigate the complaint were derived from article 8 of the Commissioner for Complaints (Northern Ireland) Order 1996, which deals with complaints against individuals, like the GP in this case, providing professional services under contracts or other consensual arrangements with the NHS [11].
The short answer to this appeal is that the Complaints Commissioner may not, under article 9 of the 1996 Order, carry out any investigations in respect of which the complainant has a remedy by way of proceedings in a court of law, unless it is not reasonable to expect the complainant to resort to law.
The widow had such a remedy but the Commissioner proceeded with the investigation because she
said that she only wished to find out what had gone wrong (and not to obtain money).
It was not open to the Commissioner, having proceeded on that basis, to recommend a payment to her [17].
More generally, the Complaints Commissioner does not have the power to recommend monetary redress against individuals in investigations under article 8.
This is because his recommendations are not binding as a matter of private law, and a private individual such as a GP has no relevant duties in public law.
Furthermore, a private individual has no means of effectively challenging the Commissioners findings on the merits of the case before a court [20, 24].
Nor does the Complaints Commissioner have a power to make a special report in default of payment.
Whilst the Parliamentary Commissioner and Assembly Ombudsman for Northern Ireland have such a power as against departments or public bodies that have been ordered to provide financial redress, the Complaints Commissioner does not.
This is because the Commissioners relationship with the legislature is different to that of other statutory ombudsmen in the United Kingdom.
The Commissioner is not an officer of the legislature, unlike the Assembly Ombudsman for Northern Ireland, but receives complaints from and reports to the complainant and individuals or bodies whose conduct is at issue.
He has no powers of compulsion, and limited powers to use information discovered during investigations for the purposes of enforcement [20 21, 26 28].
Article 19 of the 1996 Order is concerned with the presentation of annual reports before the Assembly, and not reports on individual cases such as this [29].
Lord Sumption further comments on the substance of the Commissioners recommendation that the GP pay 10,000 to the widow.
A monetary recommendation must be rational and capable of explanation.
The figure in the Commissioners report appears to have been plucked out of the air: it does not offer a coherent explanation or calculation, or identify the precise failings in respect of which it was made [30].