ON APPEAL FROM THE UPPER TRIBUNAL OF THE IMMIGRATION AND ASYLUM CHAMBER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LADY JUSTICE BLACK
| (1) JACQUELINE ELIZABETH EDGEHILL
(2) HASSINA ABDALLAH BHOYROO
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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
Crown Copyright ©
Lord Justice Jackson:
|Part 1. Introduction||(paragraphs 2 to 11)|
|Part 2. The facts||(paragraphs 12 to 21)|
|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?||(paragraphs 22 to 34)|
|Part 4. Decisions in the individual cases||(paragraphs 35 to 40)|
|Part 5. Executive summary and conclusion||(paragraphs 41 to 44)|
"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."
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."
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."
"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."
"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."
"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."
"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."
Lady Justice Black:
Lord Justice Laws: