judgement:
The appellant, Nottingham City Council (Nottingham), is the licensing authority for those houses in multiple occupation (HMOs) in its district which are licensable under Part 2, Housing Act 2004.
This appeal concerns two HMOs, namely 44, Rothesay Avenue, Lenton, Nottingham NG7 1PU and 50, Bute Avenue, Lenton, Nottingham NG7 1QA.
Both are owned by the second respondent, Trevor Parr Associates Ltd, which carries on the business of providing accommodation for students.
The first respondent Dominic Parr is the managing director of the second respondent and the manager of the properties.
Nottingham appeals against the decision of the Court of Appeal dated 29 March 2017, dismissing its appeal against the decision of the Upper Tribunal (Lands Chamber) dated 9 February 2016, dismissing its appeals against decisions of the First tier Tribunal dated 5 November 2014 (44, Rothesay Avenue) and 6 May 2015 (50, Bute Avenue) respectively, allowing the respondents appeal against the imposition by Nottingham of certain HMO licensing conditions.
On this appeal to the Supreme Court the respondents have not appeared and have not been represented.
In these circumstances, at the request of the Court an Advocate to the Court was appointed in order to argue the grounds for resisting the present appeal and we are grateful to Mr Martin Chamberlain QC for performing this role.
In addition, the Secretary of State for Housing, Communities and Local Government (the Secretary of State) has intervened in this appeal.
We are grateful to all counsel for their submissions.
Legislation
The Housing Act 2004, Part 2 replaced the previous law on HMOs which was to be found in the Housing Act 1985, Part XI (the 1985 Act).
The 1985 Act defined an HMO as a house which is occupied by persons who do not form a single household but left the word household undefined.
In Barnes v Sheffield City Council (1995) 27 HLR 719 the Court of Appeal set out a number of factors relevant to determining whether occupants were living together as a single household.
It held that in the particular circumstances of that case a group of students sharing a house constituted a single household.
The 1999 consultation paper, Licensing of Houses in Multiple Occupation England (DETR, 1999), which preceded the 2004 Act observed (section 2, para 24) that, as a result of this judgment, housing authorities were wary of attempting to use their HMO powers in shared houses, particularly those occupied by students.
The 2004 Act was intended, inter alia, to extend the regulatory scheme of HMOs to include shared student accommodation, subject to certain exceptions.
The 2004 Act introduced for the first time a system of licensing of HMOs authorising occupation of the house concerned by not more than a maximum number of households or persons specified in the licence (section 61(2)).
A building or part of a building will qualify as an HMO if the living accommodation is occupied by persons who do not form a single household (section 254(2)(b), (3) and 4(c)) and if occupied by those persons as their only or main residence or they are to be treated as so occupying it (section 254(2)(c), (3) and 4(d)).
Section 258 makes provision for determining when persons are to be regarded as not forming a single household for the purposes of section 254.
They are to be so regarded unless they are members of the same family or their circumstances are of a description specified in regulations (section 258(2)).
Such provision is made in the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006 (SI 2006/373) (the 2006 Regulations).
Section 259 makes provision for determining when persons should be treated as occupying premises as their only or main residence.
In particular, a person is to be so treated, inter alia, if premises are occupied by the person as the persons residence for the purpose of undertaking a full time course of further or higher education (section 259(2)(a)).
If an application for a licence is made to the local housing authority, it may grant a licence if it is satisfied as to the matters mentioned in section 64(3).
Those requirements include that the house is reasonably suitable for occupation by not more than the maximum number of households or persons [specified in the application or decided by the authority] or that it can be made so suitable by the imposition of conditions under section 67 (section 64(1), (2), (3)(a)).
Section 67 provides in material part: 67 Licence conditions (1) A licence may include such conditions as the local housing authority consider appropriate for regulating all or any of the following the management, use and occupation of the house (a) concerned, and (b) its condition and contents. (2) Those conditions may, in particular, include (so far as appropriate in the circumstances) (a) conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it; (5) A licence may not include conditions imposing restrictions or obligations on a particular person other than the licence holder unless that person has consented to the imposition of the restrictions or obligations. (6) A licence may not include conditions requiring (or intended to secure) any alteration in the terms of any tenancy or licence under which any person occupies the house.
Guidance
At the material time, minimum sizes of bedrooms in HMOs were not prescribed in legislation.
However, Nottingham issues guidance to its housing officers on the operation of this licensing system.
For present purposes the relevant document is HMO Amenity Guidance 3 Space Provision for Licensable and Non Licensable HMOs.
This states that in the case of bedrooms in single occupation in HMOs where there is adequate dining space elsewhere and where cooking facilities are not provided in the room the minimum space provision is eight square metres.
A general note adds: The dimensions and areas specified shall normally be regarded as the minimum, particularly with regard to new proposals.
However it is recognised that existing buildings cannot always achieve these minima.
A degree of flexibility will sometimes be possible if other compensating features are present.
Conversely it should be noted that irrespective of the dimensions, the shape and useable living space of any room is a determining factor in the calculation of the maximum number of people for which it is suitable.
In carrying out its measurements Nottingham disregards all space with a floor to ceiling height of less than 1.53 metres.
Nottingham participates with other housing authorities in the East Midlands in an organisation named East Midlands Decent and Safe Homes which also sets out amenity standards for HMOs in Amenity and Space in HMOs: A Landlords Guide (the East Midlands DASH Guide).
This recommends adopting eight square metres as the minimum size for bedrooms of this sort but also states: The standards are usually regarded as a MINIMUM but are a guide only.
Other factors or compensatory features will be taken into account when inspecting a property, therefore allowing for a degree of flexibility in certain circumstances.
These factors could include the shape of the usable living space, or the needs and wishes of the occupants. (Original emphasis)
The properties
44, Rothesay Avenue and 50, Bute Avenue are both terraced houses of traditional brick construction with a slate roof.
Both are used for letting to students and in each case the attics have been converted into bedrooms.
In each property the front attic bedroom has a sloping ceiling which reduces the area regarded by Nottingham as useable living space below eight square metres.
At 44, Rothesay Avenue the front attic room has a total floor area of 9.75 square metres but, due to the sloping ceiling, only 5.89 square metres has a floor to ceiling height of 1.53 metres or more.
The front attic room at 50, Bute Avenue has a floor area of approximately 11 square metres of which only 6.89 square metres has a floor to ceiling height of 1.53 metres or more.
Both the Upper Tribunal and the Court of Appeal quoted the following description of the attic bedroom at 44, Rothesay Avenue by the First tier Tribunal: The area of the relevant bedroom having a height of less than 1.53m was utilised to accommodate a desk and for storage.
The relevant room includes a double bed, desk, chest of drawers, bedside table, bookshelves and a built in wardrobe.
The pitch of the roof slope was such that it appeared possible to use the desk without undue risk of collision and any such risk could be reduced further by placing the chair in the area beneath the pitched roof window thereby eliminating the risk of collision when rising from the chair.
The head of the bed was fitted under that part of the room with reduced height.
Risk of collision could be avoided by turning the bed through 180.
The risk of collision when changing the bed linen could be avoided by pulling the bed out of the area with reduced headroom prior to performing the task.
The assessment of the attic bedroom at 50, Bute Avenue was to similar effect.
Nottinghams decisions and the appeals
In each case Nottingham granted a new HMO licence which imposed a condition prohibiting the use of the attic bedroom for sleeping.
The licence for 44, Rothesay Avenue provided: [T]he second floor front bedroom be prohibited for the use of sleeping.
This room will not be allowed for the use for sleeping until it has provided by way of alteration, adaptation or extension a useable floor surface area of eight square metres within a minimum ceiling height of 1.53 metres below the sloping ceiling from the floor. (para 36) The licence for 50, Bute Avenue limited the number of persons permitted to occupy the HMO to a maximum of five and provided: The second floor front bedroom is not to be used as a sleeping room, except where it is let in combination with another room within the property in such a way as to provide the occupant with the exclusive use of two rooms. (para 38) This licence further provided that the restriction on sleeping in the room might be removed if alterations were carried out to increase the size of the room to eight square metres (excluding any area where the ceiling height is below 1.53m).
In each case the respondents appealed to the First tier Tribunal against the imposition of these conditions.
Each of the First tier Tribunals referred in its decision to the guidance issued by Nottingham and, in particular, to the general note quoted at para 7 above.
Each considered that Nottinghams guidance on space provision was reasonable as general guidance but noted that some flexibility was permitted if other compensating features were present.
Each considered that in each of the rooms the area with the reduced headroom was of some value for the uses described.
Furthermore, each considered that in each of the HMOs the provision of communal living space was significantly larger than the minimum contemplated by Nottinghams requirements for additional living space.
In each case the Tribunal regarded this over provision as a compensating feature which could be taken into account in applying Nottinghams own guidance.
In each case the Tribunal concluded that the attic rooms were adequate as study/bedrooms where cohesive living is envisaged and that there were sufficient compensating features in the HMOs to make them suitable for student or similar cohesive occupation for six persons in six households.
Accordingly, in the licence for 44, Rothesay Avenue the First tier Tribunal substituted an alternative condition, namely that: The second floor front bedroom may only be used for sleeping accommodation by a person engaged in full time education and who resides in the dwelling for a maximum period of ten calendar months over a period of one year.
No similar condition was introduced by the First tier Tribunal which heard the appeal in relation to 50, Bute Avenue, but it justified its conclusion by stating that there are sufficient compensating features in the property to make it suitable for students or similar cohesive occupation for six persons in six households.
In dismissing Nottinghams further appeal in that case, however, the Upper Tribunal directed that the same condition be included in the licence for 50, Bute Avenue.
On appeal to the Upper Tribunal (Lands Chamber) both appeals were dismissed.
Martin Rodger QC, Deputy President, referred to examples of guidance by local housing authorities modifying space standards for particular modes of occupation which, he considered, recognise that certain categories of occupier may wish to occupy accommodation in a particular way.
The purpose of all conditions under section 67 was to ensure that the HMO is suitable for the number of persons permitted to occupy it and there was therefore nothing unlawful in formulating a condition applicable to a particular mode of occupation by a category of occupants if the house was suitable for them in greater numbers than it would be for a different mode of occupation.
He rejected Nottinghams submission that the Act requires that an HMO must be capable of occupation by all potential occupants.
Referring to the substituted condition in the case of 44, Rothesay Avenue, he observed that the condition was formulated on the basis that the property was one where cohesive living is envisaged and that by cohesive living the First tier Tribunal clearly had in mind the level of shared activity and social interaction to be expected in a shared house or Category B HMO, as described at greater length in the policy documents of other local authorities.
In his view, the basic idea of a house shared by a number of individuals, not forming a family but who nevertheless wish to share communal living facilities and enjoy a significant level of social interaction, is readily understood.
With regard to the terms of the condition he observed: I am satisfied that there is nothing unlawful in a condition restricting the use of sleeping accommodation in part of an HMO to a person in full time education, if the decision maker is satisfied that, looked at as a whole, the HMO is suitable for the number of households specified in the licence.
An alternative condition, perhaps more closely reflecting the reason for permitting the use of a room smaller than would normally be acceptable, might require that the occupiers be members of a group who intend to share the communal living space, but I do not think the reference to students makes the condition unlawful.
The Court of Appeal (Longmore, Lewison and Briggs LJJ) upheld the decision of the Upper Tribunal: [2017] PTSR 879.
The Court of Appeal considered that the power to impose conditions permitted a condition defined by reference to the general characteristics and activities of an occupier.
A restriction of occupation to occupation by students was a restriction on occupation by persons.
The Court of Appeal rejected submissions that the condition imposed by the First tier Tribunal was irrational and incapable of effective enforcement.
However, it varied the licences to include two further conditions: that the communal space on the ground floor, (i) comprising a kitchen/diner and living room area, be kept available for communal living space only; (ii) students engaged in full time education.
that no bedrooms may be let to persons other than
Nottingham now appeals to the Supreme Court, by leave granted by this Court, on the following grounds: Ground 1: The power to impose conditions under sections 64 and 67, Housing Act 2004, in order to make an HMO suitable for a particular number of households or persons, cannot be used so as to limit the class of persons for whom the HMO is suitable.
Ground 2: The conditions imposed by the Tribunals and Court of Appeal are irrational and unenforceable.
Ground 1
Submissions of the parties
On behalf of Nottingham, Mr Andrew Arden QC submits that the conditions imposed seek to make an exception for full time students otherwise than in the circumstances permitted by the legislation.
Section 64(3)(a) requires the authority to be satisfied that the house is reasonably suitable for occupation by not more than the maximum number of households or persons mentioned in subsection (4) or that it can be made so suitable by the imposition of conditions under section 67.
In his submission the legislation, at this stage, is unequivocal and concerned only with numbers.
Furthermore, section 67(2)(a) which permits conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it does not permit conditions restricting who may occupy an HMO.
The references elsewhere in the statute to the characteristics of occupants do not support setting conditions by reference to such characteristics.
In the alternative, the proposed conditions here seek, contrary to the policy of the legislation, to introduce an exception to its operation for a category of persons or a defined set of circumstances.
A condition which restricts the occupation of an HMO by reference to a class of occupier does not achieve the purpose of improving or maintaining standards and has the effect of making accommodation unavailable to a section of the rental market.
That standards may be lowered for certain categories otherwise than as specified by Parliament is the antithesis of the legislative purpose.
In the further alternative, treating occupation by students in this way is contrary to the statutory object of Part 2 of the 2004 Act which was intended in part to reverse the decision of the Court of Appeal in Barnes v Sheffield City Council.
On behalf of the Secretary of State Mr Jonathan Moffett QC accepts that, in an appropriate case, section 67 does empower a housing authority to impose a condition on a licence which restricts the occupation of all or part of an HMO to occupation by a particular class of person.
However, he submits that a housing authority may not, on the basis of such a condition, grant a licence for an HMO which authorises the HMO to be occupied by a greater number of households or persons than the authority would otherwise authorise.
In particular, he criticises the approach of the Court of Appeal on the grounds that it allows for the application of different standards for different classes of person and assumes that a particular class of occupier will live in the HMO in a way that requires a lower standard of accommodation than other classes.
He submits that section 64(3)(a) refers to conditions that make the house reasonably suitable for occupation by the maximum number of households or persons and does not refer to conditions that make the households or persons suitable to occupy the house.
Mr Chamberlain, as Advocate to the Court, has at the Courts request advanced the submissions which might have been made by the respondents had they taken part in this further appeal.
He submits that section 67 permits the imposition of the conditions in question here.
First, he submits that the conditions imposed on the letting of each of the properties were, on their face, conditions regulating the use of the second floor front bedroom and were correctly characterised as such.
However, Parliament chose to permit conditions regulating management, use and occupation of an HMO.
On a natural reading, a condition regulating the occupation of a house is apt to include one that governs how or by whom it may be occupied.
Contrary to the submissions of Nottingham, the Court of Appeal decision does not introduce an exception to the operation of the legislation for a category of persons or a defined set of circumstances, nor does it allow occupation at a lower standard than would otherwise have been permitted in the circumstance of the HMOs in question.
Discussion
Section 64(3)(a) indicates that the purpose of the imposition of conditions is to make a house reasonably suitable for occupation by not more than the maximum number of households or persons specified in the application or decided by the housing authority.
The question as to what sort of conditions may be imposed is governed by section 67.
Section 67(1)(a) provides that a licence may include such conditions as the local housing authority considers appropriate for regulating all or any of the management, use and occupation of the house concerned.
Section 67(1) is followed in section 67(2) by a non exhaustive list of permitted conditions including in section 67(2)(a) conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it.
Considering these words in their natural meaning, they extend sufficiently widely to include the conditions with which we are concerned.
I am persuaded that the words use and occupation in section 67(1) are not used as a composite term.
Section 67(2)(a) refers disjunctively to the use or occupation of particular parts of the house.
The inclusion of occupation in addition to use must have been intended to extend the scope of permissible conditions.
It may well be, as Mr Chamberlain submits, that the conditions in respect of each of these houses related to the use of the attic bedrooms.
However, it seems clear that they relate to the occupation of those rooms.
As Mr Chamberlain put it, on a natural reading a condition regulating the occupation of a house is apt to include one that governs how or by whom it may be occupied.
In my view, these conditions seek to regulate the occupation of particular parts of the house by persons occupying it and fall squarely within the natural meaning of section 67(2)(a).
It is, however, necessary to stand back from the plain meaning of these provisions and to consider whether such a reading is consistent with the object of the legislation.
In this regard it is significant that elsewhere in Part 2 of the 2004 Act the manner of occupation of a house and the general characteristics of occupants are considered relevant in contexts connected with HMOs and with housing standards generally.
In some instances, the personal occupation or activities of an occupier will have a bearing on whether the legislation applies.
Thus, for example, persons carrying out domestic services are regarded as occupying the same household as their employer if they are occupying rent free tied accommodation in the same building (2006 Regulations, regulation 3); a full time student is regarded as occupying accommodation as his only or main residence if it is occupied for the purpose of his full time course (section 259(2)(a)); and some religious communities are outside the HMO scheme if their principal occupation is prayer, contemplation, education or the relief of suffering (Schedule 14, paragraph 5).
Therefore, in certain circumstances the operation of the legislative scheme will depend on the personal characteristics of the occupants or their activities.
In the present case the Deputy President of the Upper Tribunal drew attention in his judgment to the fact that prior to the present legislation, under the 1985 Act, regard was had to the suitability of an HMO for occupation by a particular category of occupier.
Thus, in 1986 the Institution of Environmental Health Officers published guidance on amenity standards for HMOs which distinguished between different categories of HMOs.
In particular, Category A comprised houses occupied as individual rooms where there was some exclusive occupation and some sharing of amenities but each occupant lived otherwise independently of all others.
Category B comprised houses occupied on a shared basis which would normally be occupied by members of a defined social group, for example students or a group of young single adults.
In such houses the occupants each enjoyed exclusive use of a bedroom but would share other facilities including a communal living space.
Having distinguished between these categories in this way on the basis of the manner of occupation, the guidance then went on to set out different specifications for each category.
I note, moreover, that a revised version, the 1994 Amenity Standards, remained current until very recently and was available on the website of the successor body, the Chartered Institute of Environmental Health.
A similar approach can be detected in certain guidance issued following the implementation of the current legislation.
The Deputy President of the Upper Tribunal in his judgment in the present case drew attention to the East Midlands DASH Guide produced by housing authorities in the East Midlands including Nottingham (see para 8, above) which recognises that different facilities may be required for different modes of occupation.
It provides that in HMOs where the occupants tend to live separately there should be a sink/wash hand basin within the living units.
Similarly, there was before the Court of Appeal in the present case a note prepared by Mr Robert Fookes, counsel for the respondents, setting out extracts from the current guidance issued by a selection of housing authorities responsible for accommodation likely to be used by students attending Oxford, Cambridge and Russell Group universities.
In half of these standards the housing authorities distinguish between students and other occupants.
As the Deputy President of the Upper Tribunal observed, it is obvious that nothing in this guidance can change the meaning of the present legislation.
Nevertheless, I agree with him that it provides a useful point of reference.
It may be thought that, as a matter of common sense, the manner of occupation of a room and the type of occupant may have a bearing on the suitability of a particular room for a particular use and that this is reflected in the guidance referred to above.
That guidance also supports the view that in practical terms the availability of communal living space may be capable of compensating for an undersized bedroom.
However, the critical question is whether the approach reflected in such guidance is consistent with the present legislation.
At the heart of the appeal on this ground lie two submissions by Mr Arden on behalf of Nottingham.
First, he submits that the conditions in issue here seek, contrary to the policy of the legislation, to introduce an exception to its operation for a category of persons or a defined set of circumstances.
It is clear that Part 2 of the 2004 Act is intended to apply to shared student houses.
One purpose behind the 2004 Act was to reverse the effect of Barnes v Sheffield City Council as a result of which many shared student houses fell outside the scope of the 1985 Act.
Express provision is made in section 259(2)(a) in respect of occupation for the purpose of undertaking a full time course of further or higher education and the effect of section 254(5) and Schedule 14, paragraph 4 is, by way of exception, to remove from this regulatory scheme certain buildings occupied by students.
Contrary to Nottinghams submission, however, I do not consider that the three conditions with which we are concerned have the effect of undermining this purpose.
These conditions do not remove shared student houses from the regulatory scheme.
On the contrary, as the decisions of the First tier Tribunal in the present cases demonstrate, the standard of accommodation available in a shared student house will be inspected and subjected to rigorous examination and the house will be licensed as suitable for a stipulated number of occupants only if it is considered to be so suitable (if necessary subject to conditions) by the housing authority for the area or, on appeal, by a specialist tribunal.
Secondly, Mr Arden submits that there is no doubt that the purpose in imposing the conditions in the present case was to allow occupation at a lower standard or by a greater number than would otherwise have been permitted in the circumstances of the HMOs in question.
I should observe at this point that it is clear that Nottingham in bringing this appeal and the Secretary of State in intervening have clearly been motivated by a wish to ensure that HMOs provide acceptable living conditions, to protect the vulnerable or potentially vulnerable groups that tend to occupy HMOs and to avoid an interpretation of the legislation as a result of which lower standards are to be considered appropriate for particular groups such as students.
That is commendable.
However, I consider that their concern is unfounded.
The imposition of conditions such as those imposed by the Tribunals and the Court of Appeal in the present case do not have that effect.
It is entirely appropriate, when considering the suitability of accommodation in an HMO for a particular purpose, to have regard to the mode of occupation.
If the house is to be occupied by a group living together cohesively, each having his or her own bedroom but sharing other facilities including a kitchen/diner and a living room, the availability of those additional facilities is a material consideration.
In these circumstances the mode of occupation means that the shared facilities will benefit all the occupants and, as a result, this may compensate for a bedroom which is slightly smaller than the recommended minimum.
By contrast, where occupants of an HMO each live independently of all others, sharing only bathroom, toilet and kitchen facilities, any communal living space made available will not benefit the occupants in the same way because of their different living arrangements.
It seems to me to be entirely appropriate, therefore, that in considering the suitability of accommodation in an HMO regard should be had to the proposed mode of occupation.
Furthermore, in appropriate cases effect may be given to such considerations by the imposition of conditions in the licence.
This is not inconsistent with the statutory scheme.
As the Deputy President of the Upper Tribunal pointed out in his judgment, certain types of accommodation may lend themselves to different styles of occupation and it would be surprising if the 2004 Act did not reflect that.
The various guidelines referred to earlier in this judgment refer in different ways to the need for flexibility in their application.
In that regard, account should be taken of the proposed mode of occupation where it is likely to influence the quality of the accommodation made available to the occupant.
It must be emphasised that this does not permit the application of lower standards than would otherwise be applicable.
On the contrary, it is simply that there will be certain circumstances in which, as a matter of common sense, it will be appropriate to have regard to the mode of occupation when applying the same objective standards which apply to all HMOs.
For these reasons, I consider that the power to impose conditions under sections 64 and 67, Housing Act 2004, in order to make an HMO suitable for a particular number of households or persons, can be used so as to limit the class of persons for whom the HMO is suitable.
Finally, I should draw attention to the fact that there exist other mechanisms to maintain standards of accommodation in HMOs, in particular the imposition of mandatory conditions under Schedule 4 of the 2004 Act.
In this regard, I note that the Licensing of Houses in Multiple Occupation (Mandatory Conditions of Licences) (England) Regulations 2018 (2018 No 616) (the 2018 Regulations), came into force on 1 October 2018 and introduced additional mandatory conditions in respect of floor area.
As a result a licence must now include a condition requiring the licence holder to ensure that the floor area of any room in the HMO used as sleeping accommodation by one person over ten years is not less than 6.51 square metres (paragraph 2, inserting Schedule 4, paragraph 1A(2)(a)).
Ground 2
Submissions of the parties
On behalf of Nottingham, Mr Arden submits that if there is a power to impose a condition based on a class of occupier, the conditions in the present case as directed by the Tribunals and the Court of Appeal are irrational, both in the conventional sense and in the sense that they are not effective to achieve their purpose, and incapable of enforcement.
While the conditions are designed to secure occupation only by students, this, he submits, is not necessarily the same as cohesive living.
The judgments below are said to have proceeded on the basis of an image of student life which is simply not true of all or necessarily most students, and this is an irrational basis for determining who may or may not occupy an HMO.
The conditions go no further than setting up the possibility of sharing.
In addition, it is said that the condition limiting occupation for a maximum period of ten calendar months over a period of one year is irrational.
Either the rooms are or are not suitable to be used as sleeping accommodation all the year round.
Nottingham objects that the condition that the attic rooms be occupied for only ten months over the course of a year could not practicably be monitored.
It also maintains that while it is possible to ensure that occupants are all in full time education, that requirement cannot in practice be enforced.
The Secretary of State has taken no position on this ground of appeal.
Mr Chamberlain submits that, while not all students live in the same way, the proxy employed by the condition is sufficiently precise.
Moreover, the First tier Tribunals which heard the initial appeals were well placed to judge whether cohesive living was the norm among students in the area where the properties were located.
With regard to enforceability, he takes issue with Nottingham.
Discussion
I agree with the Court of Appeal that the conditions imposed by the Tribunals were deficient in that they failed to require any part of the HMO to be available for communal living and did not require the bedrooms other than the front attic bedrooms to be let to students.
That deficiency is, however, cured by the further conditions introduced by the Court of Appeal.
The reasoning of the First tier Tribunals and the Upper Tribunal in this case makes clear that the intention was to restrict occupation to students because they were considered to be a category of occupants who were likely to live in a cohesive manner.
In the Upper Tribunal the Deputy President observed that by cohesive living the First tier Tribunal clearly had in mind the level of shared activity and social interaction to be expected in a shared house or Category B HMO, as described at greater length in the policy documents of other local authorities.
The first issue for consideration under this ground is therefore, as Mr Chamberlain put it, whether a condition limiting the occupation of each of the houses to occupation by persons engaged in full time education is a sufficiently precise proxy for occupation by persons living together cohesively.
All students are individuals and their respective activities and life styles will, no doubt, vary considerably.
Nevertheless, it does seem to me that the normal state of affairs generally to be expected when students share a student house is that there will be a high level of social activity and social interaction among them and that they will all make extensive use of the shared living facilities.
There can be no guarantee that any given student occupier will make full use of the shared facilities, but the availability of such facilities, emphasised by the Court of Appeal, coupled with the normal expectation of cohesive living in a student house makes it reasonable to adopt this proxy in this context.
It is also significant that the members of the First tier Tribunals in these cases, with their experience of student accommodation in Nottingham, considered this a reasonable approach.
While I agree with the Deputy President of the Upper Tribunal that an alternative condition, perhaps more closely reflecting its rationale, might require that all occupants be members of a group who intend to share the communal living space, the proxy adopted is sufficiently precise.
Moreover, the alternative might give rise to difficulties of enforcement.
The requirement that the attic rooms may only be occupied for ten months in each year was clearly intended to reinforce the requirement that occupation be by full time students.
If the latter requirement is lawful, the former is strictly unnecessary.
I consider that the requirement limiting occupation to ten months in each year is irrational.
If a room is suitable for occupation for sleeping for ten months in the year, it is suitable for such occupation for the entire year.
Moreover, full time students often require accommodation for the entire year.
In these circumstances, it is unnecessary to consider whether this requirement is enforceable.
I would vary the conditions imposed in respect of each property to delete the requirement that the attic rooms may only be occupied for ten months in each year.
Finally, it is said on behalf of Nottingham that while it is possible to ensure that occupants are all in full time education, it is not in practice possible to enforce the requirement.
Nottingham points to the 12 months assured shorthold tenancy agreements employed by the respondents.
Each requires the tenant to ensure that the propertys strict purpose as a set of lets to students of the University is not prejudiced and also contains a clause which entitles the landlord to re enter if the tenant ceases to be a student of the university.
However, Nottingham draws attention to the practical difficulties of evicting a tenant in these circumstances which, it is said, would make it practically impossible to enforce the conditions in the way envisaged by the legislation.
I note that if a landlord tries but fails to evict tenants who have ceased to be full time students, for example because the court considers it unreasonable to make the order, the landlord may well have a reasonable excuse for permitting the occupants to remain and a defence under section 72(5) of the 2004 Act to the offence of failing to comply with the licence condition.
However, the sanction of revocation of the licence will be available which, in itself, should be a sufficient sanction.
Conclusion
For these reasons, and subject to the deletion of the requirement of occupation for only ten months in each year, I consider that the conditions imposed by the Tribunals and the Court of Appeal, considered cumulatively, in respect of 44, Rothesay Avenue and 50, Bute Avenue, respectively, were entirely lawful.
Accordingly, I would vary the conditions to delete the requirement of occupation for only ten months in each year but would otherwise dismiss the appeal.

summary:
Nottingham City Council, the appellant, is the licensing authority for houses in multiple occupation (HMOs) in its area under Part 2 of the Housing Act 2004 (2004 Act).
This appeal concerns two HMOs, 44, Rothesay Avenue and 50, Bute Avenue which are owned by the second respondent, Trevor Parr Associates Ltd. The first respondent, Dominic Parr, is the managing director of the second respondent and the manager of the two HMOs.
The 2004 Act requires HMOs to be licensed by the local housing authority.
The local housing authority can grant the application under section 64 of the 2004 Act if it is satisfied that, among other requirements, the house is reasonably suitable for occupation by not more than the maximum number of households or persons [specified in the application or decided by the authority] or that it can be made so suitable by the imposition of conditions under section 67 [of the 2004 Act].
The appellant issued guidance on the operation of the licensing system, which provides that the minimum space provision in the case of bedrooms in single occupation in HMOs is eight square metres, although a degree of flexibility is sometimes possible if other features are present. 44, Rothesay Avenue and 50, Bute Avenue are both used for letting to students and each has an attic bedroom with an area of useable living space below eight square metres.
In each case, the appellant granted an HMO licence which imposed a condition prohibiting the use of the attic bedroom for sleeping.
The respondents appealed to the First tier Tribunal against the imposition of the conditions.
The First tier Tribunal at separate hearings deleted the conditions imposed by the appellant.
In the case of 44, Rothesay Avenue it substituted a condition that the attic bedroom may only be used for sleeping accommodation by a full time student who resides in the bedroom for a maximum of ten months in each year.
The appellant appealed both decisions to the Upper Tribunal, which dismissed the appeals and also directed that the substituted condition be included in the HMO licence for 50, Bute Avenue.
The appellant then appealed to the Court of Appeal, which upheld the decision of the Upper Tribunal and included further conditions in both HMO licences that the communal space be kept available for communal living only and that no bedrooms be let to persons other than full time students.
The appellant appealed to the Supreme Court contending that the power to impose conditions under sections 64 and 67 of the 2004 Act cannot be used to limit the class of persons for whom the HMO is suitable, and that the conditions imposed by the First tier Tribunal, Upper Tribunal and the Court of Appeal are irrational and unenforceable.
The Supreme Court unanimously dismisses the appeal, subject to varying the conditions to delete the requirement of occupation for a maximum of ten months in each year.
Lord Lloyd Jones gives the sole judgment with which the other Justices agree.
Section 64(3)(a) of the 2004 Act indicates that the purpose of the imposition of conditions is to make a house reasonably suitable for occupation by not more than the maximum number of households or persons specified in the application or decided by the housing authority.
Section 67(1)(a) provides that a licence may include such conditions as the local housing authority considers appropriate for regulating all or any of the management, use and occupation of the house concerned, and section 67(2) sets out a non exhaustive list of permitted conditions including conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it [18].
These words in their natural meaning are sufficiently wide to include the conditions imposed by the Tribunals and the Court of Appeal [18].
Such a reading is also consistent with the object and purpose of the 2004 Act.
Elsewhere in Part 2 of the 2004 Act, the manner of occupation and characteristics of occupants are considered relevant in contexts connected with HMOs and housing standards generally [20].
The guidance in respect of the 2004 Act also supports the view that the manner of occupation of a room and the type of occupant may have a bearing on the suitability of a particular room for a particular use [23].
The Court does not consider that the conditions in issue introduce an exception for a category of persons or a defined set of circumstances [24].
Furthermore, they do not permit occupation at a lower standard [25].
It is therefore appropriate to have regard to the proposed mode of occupation in considering the suitability of accommodation in an HMO [26].
In particular, account should be taken of the proposed mode of occupation where it is likely to influence the quality of the accommodation made available to the occupant.
However, this does not permit the application of lower standards than would otherwise be applicable [26].
Thus, the power to impose conditions under sections 64 and 67 of the 2004 Act can be used to limit the class of persons for whom the HMO is suitable [27].
The Court agrees with the Court of Appeal that the conditions imposed by the Tribunals were deficient in that they failed to require any part of the HMO to be available for communal living and did not require the bedrooms other than the attic bedrooms to be let to students.
That deficiency was, however, cured by the further conditions introduced by the Court of Appeal [33].
The condition limiting the occupation to persons engaged in full time education is rational [35] and enforceable [37].
The Court considers, however, that the requirement limiting occupation to ten months in each year is irrational [36].
Therefore, subject to the deletion of the requirement of occupation for a maximum of ten months in each year, the conditions imposed by the Tribunals and the Court of Appeal in each case, considered cumulatively, were entirely lawful.
Accordingly, the Supreme Court varies the conditions to delete the requirement of occupation for a maximum of ten months in each year but otherwise dismisses the appeal [38].


judgement:
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.

dataset_name: UK-Abs

summary:
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].