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||Neutral Citation Number:  EWCA Civ 402
||Case No: C5/2013/1417 & C5/2013/1890
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL OF THE IMMIGRATION AND ASYLUM CHAMBER
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE JACKSON
LADY JUSTICE BLACK
|| (1) JACQUELINE ELIZABETH EDGEHILL
(2) HASSINA ABDALLAH BHOYROO
||- and -
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Adam Tear (instructed by Duncan Lewis) for the Appellant Jacqueline Elizabeth Edgehill
Mr Zane Malik (instructed by Malik Law Chambers Solicitors) for the Appellant Hassina Abdullah Bhoyroo
Mr Charles Bourne (instructed by Treasury Solicitor) for the Respondent
Hearing date: 25th February 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Jackson:
- This judgment is in five parts, namely:
Part 1. Introduction
- These are appeals by two foreign nationals against decisions of the Upper Tribunal upholding decisions that their applications for indefinite leave to remain under article 8 of the European Convention on Human Rights be refused.
- The principal issue in these appeals is whether the Upper Tribunal correctly applied the transitional provisions set out in the Statement of Changes in Immigration Rules promulgated on 13th June 2012. Those changes in the Immigration Rules came into effect on 9th July 2012.
- I shall refer to the Immigration Rules as they stood up to 8th July 2012 as "the old rules". I shall refer to the Immigration Rules as they were on and after 9th July 2012 as "the new rules".
- Rule 276B of the old rules provided:
"Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom
276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom; or
(b) he has had at least 14 years continuous residence in the United Kingdom, excluding any period spent in the United Kingdom following service of notice of liability to removal or notice of a decision to remove by way of directions under paragraphs 8 to 10A, or 12 to 14, of Schedule 2 to the Immigration Act 1971 or section 10 of the Immigration and Asylum Act 1999, or of a notice of intention to deport him from the United Kingdom; and
(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, association and employment record; and
(d) domestic circumstances; and
(e) previous criminal record and the nature of any offence of which the person has been convicted; and
(f) compassionate circumstances; and
(g) any representations received on the person's behalf; and
(iii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application."
- Rule 276ADE of the new rules provides:
Requirements to be met by an applicant for leave to remain on the grounds of private life
276ADE. The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 1.5 in Appendix FM; and
(ii) does not fall for refusal under any of the grounds in Section S-LTR 1.6 to 2.3 in Appendix FM; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment); or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life residing continuously in the UK (discounting any period of imprisonment); or
(vi) is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.
In considering applications under this paragraph, the Secretary of State shall attach less weight to private life in the UK established following refusal of an earlier application for leave to remain made under paragraph 276ADE."
- The transitional provisions set out at the front of the Statement of Changes in Immigration Rules provide:
With the exception of paragraphs 6 to 72, 74 to 80, 82, 86, 88 to 90, 93, 97, 98, 100, 102, 103 and 106 the changes set out in this Statement shall take effect on 9 July 2012. Paragraphs 6 to 72, 74 to 80, 82, 86, 88 to 90, 93, 97, 98, 100, 102, 103 and 106 shall take effect on 1 October 2012.
However, if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012."
- I shall refer to the European Convention on Human Rights as "ECHR". Article 8 of ECHR provides:
"Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
- During the course of the hearing, with the consent of the appellants' counsel, anonymity was lifted. Therefore the full names of the appellants are set out above. In the course of this judgment, however, it is convenient to refer to the appellants by their respective initials, namely JE and HB.
- At the end of the hearing the court stated that JE's appeal would be allowed, for reasons to be given later. The court reserved its decision in HB's case.
- After these introductory remarks I must now turn to the facts.
Part 2. The facts
- JE is a Jamaican national, now age 45, who came to the UK on 14th September 1998. She was granted leave to remain as a student for a limited period. On 22nd August 2011 she applied for a right of abode in the UK on the grounds of ancestry, alternatively for indefinite leave to remain under ECHR article 8. By letter dated 7th March 2012 the Secretary of State refused that application. JE appealed to the First-tier Tribunal. In relation to her article 8 claim, JE relied upon the fact that she had lived in the UK for many years and she had children in this country. By a decision dated 21st June 2012 the First-tier Tribunal dismissed both limbs of JE's appeal.
- JE appealed to the Upper Tribunal on the article 8 issue. By a decision dated 11th February 2013 the Upper Tribunal dismissed her appeal. In relation to JE's length of residence the Upper Tribunal stated as follows:
"31. In considering her length of residence in the UK we have regard to paragraph 276ADE of the Immigration Rules (as amended). That paragraph came into force on 9 July 2012, that is after the date of the immigration decision and the hearing in the First-tier Tribunal. However, Article 8 appeals are decided on the facts as at the date of the hearing and, whilst this was a decision made before the new Rules came into effect and therefore have no direct application and not retrospective, we consider it appropriate to give weight to the new Rules as being an expression of the legislature's views as to where the public interest lies.
32. Paragraph 276ADE of the amended Immigration Rules sets out the requirements to be met by an applicant for leave to remain on the grounds of private life in the UK. The relevant provision is paragraph 276ADE (iii) which provides that the applicant must show that s/he;
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment);…
33. The appellant in this case has established that she has lived in the UK continuously for over 14 years. This period of residence is less than the 20 years provided in the new Rules as establishing a right to remain in the UK on the basis of private life. The appellant's period of residence would not therefore be enough to found a claim under the current Immigration Rules."
- JE is aggrieved by the Upper Tribunal's decision and appeals to the Court of Appeal. Her essential argument is that the Upper Tribunal erred in placing reliance on rule 276ADE of the new rules, since those rules are expressly disapplied in respect of applications for leave to remain made before 9th July 2012.
- HB is a citizen of Mauritius, now age 52, who came to the UK on 8th December 2003. Originally she had leave to enter as a visitor. Thereafter she was given leave to remain for a number of years as a student. On 23rd December 2011 HB applied for leave to remain on the basis of ECHR article 8. She asserted that she, her husband and her adult children had established a private and family life in this country. They had lived here for eight years and had fallen out with all of their relatives in Mauritius.
- The Secretary of State refused HB's application under article 8. HB appealed to the First-tier Tribunal. After hearing oral evidence the First-tier Tribunal rejected the contention that HB and her husband had broken off contact with their family members in Mauritius. They had lived in Mauritius for most of their lives and still had ties to that country. The tribunal held that HB's family life would not be disrupted if she went back to Mauritius, because the family would return as a unit.
- The tribunal accepted that HB and her family had a private life in this country. Nevertheless interference with the rights to private life of HB and her family would be justified and proportionate to the aim of effective immigration control. Accordingly the First-tier Tribunal dismissed HB's appeal.
- In reaching their decisions both the Secretary of State and the First-tier Tribunal expressly placed reliance on rule 276ADE of the new rules. As noted in Part 1 above, rule 276ADE (iii) specifies 20 years' residence in the UK as one of the means of making out a claim to remain on the grounds of private life in the UK.
- HB appealed against the First-tier Tribunal's decision to the Upper Tribunal on the ground that the First-tier Tribunal failed to carry out a proper balancing exercise as required by ECHR article 8.2. The Upper Tribunal dismissed that appeal.
- HB now appeals to the Court of Appeal on two grounds. The first ground is the same as that advanced by JE. The second ground is that the First-tier Tribunal and the Upper Tribunal erred in holding that HB and her husband have no ties with Mauritius.
- The sole issue in JE's appeal and the principal issue in HB's appeal is whether it is lawful to reject an article 8 application made before 9th July 2012 in reliance upon the applicant's failure to achieve 20 years residence, as specified in the new rules. I must now turn to that issue.
Part 3. Is it lawful to reject an article 8 application made before 9th July 2012 in reliance upon the applicant's failure to achieve 20 years' residence, as specified in the new rules?
- Mr Zane Malik and Mr Adam Tear on behalf of the respective appellants submit that the answer to this question is no. They point out that paragraph 276ADE of the Immigration Rules came into effect on 9th July 2012. That specifies a period of 20 years' continuous residence in sub-paragraph (iii). That provision replaces the former rule 276B, which specified a period of 14 years' continuous residence in the UK.
- Mr Malik and Mr Tear place reliance on the second paragraph of the transitional provisions, which I have set out in Part 1 above. This provides that any application for indefinite leave to remain made before 9th July but not yet decided "will be decided in accordance with the rules in force on 8th July 2012". In other words those applications will be decided in accordance with the old rules.
- Mr Charles Bourne, for the respondent, points out that the old rule 276B provided that 14 years' continuous residence was a substantive ground upon which the Secretary of State may grant indefinite leave to remain. The new rule 276ADE, by contrast, specifies requirements to be met by an applicant for leave to remain under ECHR article 8. He goes on to submit that an application for leave to remain under ECHR article 8 is not an application under the rules. Therefore the second paragraph of the transitional provisions does not apply to it.
- This interpretation, which is advanced upon behalf of the Secretary of State, is one of some subtlety. I must confess that it did not occur to me when I was reading the transitional provisions. Since rule 276ADE regulates article 8 applications, it might be thought that such applications are made under the rules.
- Before grappling with Mr Bourne's submissions, I must remind myself of the legal principles governing the interpretation and application of the Immigration Rules. Many learned judges have pronounced upon the nature of these rules. Some have included anthologies of earlier dicta in their judgments. I attempt no such ambitious task. The citation of two authorities will suffice for present purposes.
- In Odelola v Secretary of State for the Home Department  UKHL 25;  1 WLR 1230, a Nigerian doctor who undertook a clinical attachment in the UK, applied for leave to remain as a postgraduate doctor. Her application failed because the Immigration Rules changed after she had applied but before the Secretary of State had reached a decision. In that case, unlike the present case, there was no express provision that the old rules would continue to govern applications made before the rules changed. The Asylum and Immigration Tribunal, the Court of Appeal and the House of Lords upheld the Secretary of State's decision. In the course of his judgment Lord Hoffman characterised the Immigration Rules as follows:
"The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as how the Crown proposes to exercises its executive power to control immigration. But they create legal rights: under section 84(1) of the Nationality, Immigration and Asylum Act 2002, one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules."
- Since the Immigration Rules are not formal legislation, either primary or secondary, this affects the approach to construction. In Mahad v Entry Clearance Officer  UKSC 16;  1 WLR 48 Lord Brown summarised the correct approach to construing the Immigration Rules as follows at paragraph 10:
"The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy."
- Aided by this guidance, I now return to the central issue in the two current appeals. Mr Bourne submits that applications made under article 8 before 9th July 2012 did not fall under any of the Immigration Rules, either old or new. The decision maker simply had to apply article 8, taking into account the wealth of guidance provided by Strasbourg and the domestic courts.
- The next stage in Mr Bourne's argument is that appellate tribunals make article 8 decisions by reference to the current state of affairs, not by reference to the state of affairs when the Secretary of State reached her decision. In both of the present cases the current state of affairs included new rule 276ADE, providing a requirement for 20 years' continuous residence.
- I admire the dexterity of this argument. Nevertheless it produces the bizarre result that the new rules impact upon applications made before 9th July 2012, even though the transitional provisions expressly state that they do not do so.
- The Immigration Rules need to be understood not only by specialist immigration counsel, but also by ordinary people who read the rules and try to abide by them. I do not think that Mr Bourne's interpretation of the transitional provisions accords with the interpretation which any ordinary reader would place upon them. To adopt the language of Lord Brown in Mahad, "the natural and ordinary meaning of the words, recognising that they are statements of the Secretary of State's administrative policy," is that the Secretary of State will not place reliance on the new rules when dealing with applications made before 9th July 2012.
- Accordingly, my answer to the question posed in this part of the judgment is no. That answer is subject to one important qualification. A mere passing reference to the 20 years requirement in the new rules will not have the effect of invalidating the Secretary of State's decision. The decision only becomes unlawful if the decision maker relies upon rule 276ADE (iii) as a consideration materially affecting the decision.
- Having addressed the central question of principle, I must now reach decisions in the two cases under appeal.
Part 4. Decisions in the individual cases
- The Upper Tribunal reached its decision on 11th February 2013. By then JE had lived continuously in the UK for more than 14 years (the period specified in rule 276B of the old rules). As can be seen from paragraphs 31-33 of its decision, the Upper Tribunal placed substantial weight on the fact that this was less than the period of 20 years specified in the new rules.
- In my view the Upper Tribunal fell into error in treating the minimum period of 20 years specified in the new rule 276ADE as a relevant consideration. If the Upper Tribunal had not made this error of law, it is far from clear that it would have reached the same decision.
- In those circumstances, if my Lord and my Lady agree, the Upper Tribunal's decision will be quashed and JE's appeal will be remitted to the Upper Tribunal for reconsideration.
- In HB's case both the Secretary of State and the First-tier Tribunal referred to the requirements of the new rule 276ADE. It can be seen, however, that the requirement for 20 years' continuous residence, as opposed to 14 years under the old rules, played no material part in the decision. HB had not achieved either 20 years or 14 years of continuous residence. She had lived in the UK for 8 years when she made her application under ECHR article 8. She had lived here for 9 years 5 months when the Upper Tribunal made its decision. HB's claim under article 8 was a weak one. It is clear that both the Secretary of State and the tribunals would have made precisely the same decision whether or not they had regard to the new rules.
- Mr Malik on behalf of HB makes a separate criticism of the First-tier Tribunal's finding that HB and her husband had continuing ties with Mauritius. The First-tier Tribunal's assessment of the evidence which led to that finding is set out in paragraph 6 of its determination. The First-tier Tribunal noted that HB and her husband had made three separate visits to Mauritius and that they had many relatives there. The First-tier Tribunal rejected the evidence that all contact had been broken off. The First-tier Tribunal was entitled to make those findings. The Upper Tribunal cannot be criticised for accepting those findings and proceeding on the same basis.
- If my Lord and my Lady agree, HB's appeal will be dismissed.
Part 5. Executive summary and conclusion
- Major changes to the Immigration Rules came into force on 9th July 2012. The transitional provisions stated that the new rules would not apply to applications for leave to remain before that date.
- In both the present cases the appellants applied for indefinite leave to remain under ECHR article 8 before 9th July 2012. The Secretary of State rejected the applications and the tribunals upheld the Secretary of State's decision.
- In JE's case the Upper Tribunal relied upon rule 276ADE (iii) of the new rules (requiring 20 years' continuous residence) as a consideration materially affecting the decision. Therefore that decision must be quashed and the matter remitted to the Upper Tribunal.
- In HB's case both the Secretary of State and the tribunal made reference to rule 276ADE (iii) of the new rules, but they did not rely upon it as a consideration materially affecting the decision. HB's appeal must be dismissed.
Lady Justice Black:
- I agree.
Lord Justice Laws:
- I also agree.
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