ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BEATSON
LADY JUSTICE SHARP
| Meera Muhiadeen Haleemudeen
|- and -
|Secretary of State for the Home Department
Jonathan Hall QC (instructed by The Treasury Solicitor) for the Respondent
Hearing date : 15 April 2014
Crown Copyright ©
Lord Justice Beatson :
II. The factual background
III. The material provisions of the Immigration Rules
(i) Continuous lawful residence:
"the applicant does not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974."
The requirement in sub-paragraph (iv) requires, for those between the age of 18 and 65, sufficient knowledge of the English language and about life in the United Kingdom. That in sub-paragraph (vi) requires that the applicant must not be in the United Kingdom in breach of immigration laws, save that a period of overstaying of 28 days or less will be disregarded.
"For the purposes of paragraphs 276B – 276D and 276ADE and 399A –
(a) 'Continuous residence' means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of six months or less at any one time, provided that the applicant has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:
(i) has been removed under Schedule 2 to the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or
(ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or
(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or
(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question."
(ii) Leave to remain on the ground of private life:
"(1) The requirements to be met by an applicant for leave to remain on the ground 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) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), 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 …"
IV. The Secretary of State's decision letter
"Under paragraph 276B(iii) one of the requirements to be met by an applicant for indefinite leave to remain on the ground of long residence…is that the applicant does not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974.
On 20 September 2010 at the Barkingside Magistrates Court you were convicted of the offence of driving without insurance and driving otherwise than in accordance with the licence, for which you received a fine of £245. This conviction will not become spent under the terms of the Rehabilitation of Offenders 1974 until 19 September 2015.
For the reason outlined above, your application has been refused under paragraph 276D with reference to paragraph 276D(iii) of HC395 (as amended).
Consideration has been given as to whether your removal from the United Kingdom would breach your rights in respect of your family/private life under Article 8 of the ECHR. On 9 July 2012 the Immigration Rules were amended to unify consideration under the Immigration Rules, Article 8 of the European Convention on Human Rights, and section 55 of the Borders, Citizenship and Immigration Act 2009, duty regarding the welfare of children. These are set out in Appendix FM and paragraph 276ADE of the Immigration Rules.
…It is noted that you are living as a family unit in the United Kingdom with your wife and two children aged six and four, who are all Sri Lankan nationals. You are not the partner of a British citizen or settled person and neither of your children have been continuously resident in the UK for seven years.
Consideration has [been] given as to whether your removal from the United Kingdom would breach your rights in respect of your family/private life under Article 8 of the ECHR.
[After referring to the July 2012 amendment of the Immigration Rules set out Appendix FM and paragraph 276ADE, the letter continued.]
The Immigration Rules set out the requirements for those seeking leave to enter or remain on the basis of their right to respect for private or family life by defining the criteria that a person is expected to fulfil in order to qualify [for] this right to remain in the United Kingdom.
Your application to remain in the United Kingdom has been determined in accordance with the Immigration Rules.
It is noted that you are living as a family unit in the United Kingdom with your wife and two children, aged 6 and 4, whom are all Sri Lankan nationals. You are not the partner of a British citizen or settled person, and neither of your children have been continuously resident in the UK for seven years.
For the above reasons you do not meet the requirements of Appendix FM of the Immigration Rules as it is not accepted that you meet the requirements of R-LTRP.1.1(d)(ii) which relates to E-LTRP.1.2 – 1.12 and 2.1.
[The letter also states that the applicant does not meet the requirements of R-LTRP.1.1(d)(iii), R-LTRPT.1.1(d)(ii) and (iii).]
Your application on the basis of your family life is therefore refused under paragraph D-LTRP.1.3 with reference to R-LTRP.1.1 and D-LTRPT.1.3 with reference to R-LTRPT.1.1 of the Immigration Rules.
Whilst it is considered that your elder child may have entered the school system in the UK it is considered reasonable to expect you, your wife and children to return to Sri Lanka as a family unit, and that with their parents' assistance and support your children will integrate into life in Sri Lanka. It is not considered that your particular circumstances would justify a grant of leave outside of the Immigration Rules.
Your application has also been considered in line with paragraph 276ADE of the Immigration Rules on the basis of your private life.
Paragraph 276ADE of the Immigration Rules sets out the criteria that the government would expect a person to fulfil in order to establish a right to remain in the United Kingdom on the basis of their private life.
[The letter then set out the requirements of paragraph 276ADE which I have set out at  above.]
You are aged 40 years and entered the United Kingdom on 22 September 2001. When considering the requirements outlined in paragraph 276ADE, it is noted that you have not lived continuously in the UK for at least 20 years. For this reason, it is not accepted that you will have severed all ties including social, cultural and family with Sri Lanka.
Your application on the basis of your private life is therefore refused under paragraph 276CE with reference to paragraph 276ADE of the Immigration Rules."
V. The FTT's decision
"(i) [Mr Haleemudeen] had sought to remain lawfully in the UK at all times;
(ii) His criminal offences were not at the higher end of the scale of offending;
(iii) He had lived and worked in the UK for a considerable time;
(iv) He came here with the 'clear intention' of permanently migrating with his family to the UK;
(v) The Immigration Rules 'work harshly' against him."
". … It is correct that [Mr Haleemudeen's] absence from the UK in 2007 has worked against him when considering the application on long residence grounds. It appears also that he cannot succeed under paragraph 245CD of the Rules because he is short of the necessary five year period in the UK. However, it appears to me that the Immigration Rules work harshly against [Mr Haleemudeen] and his family in this case. Such apparent harshness is relevant to the issue of proportionality.
40. Had [Mr Haleemudeen] been a serial offender with many convictions of a serious nature, I have no doubt that I would be finding against [him]. His offences are very much at the lower end of the spectrum and when considering the proportionality of removal do not feature heavily in my consideration of the appeal.
41. In all the circumstances of this case, I have come to the conclusion that the removal of [Mr Haleemudeen] back to Sri Lanka would be disproportionate in the context of Article 8 of the ECHR. …"
"(i) Failure to give adequate reasons for the finding that the removal of the family would be disproportionate;
(ii) Failure to apply the appropriate test when considering proportionality as set out in VW (Uganda) v SSHD  EWCA Civ 5;
(iii) Apparently considering that [Mr Haleemudeen] had a legitimate expectation that he would be allowed to settle in the UK;
(iv) Applying a 'near-miss' principle contrary to the law: Miah and others  EWCA Civ 261."
VI. The UT's March "error of law" decision
"… are not… sufficient reasons to find that [Mr Haleemudeen's] removal was disproportionate, even if considered cumulatively. The determination further refers to the statement of changes in the immigration rules which reflects the [Secretary of State's] view on the Article 8 balancing exercise, but fails to recognise the weight to be attached to that view, as expressed in the rules: MF (Article 8 New Rules) (Nigeria)  UKUT 00393 (IAC). I am satisfied that this decision must be set aside, because the reasons given for allowing the appeal are inadequate."
VII. The UT's June Article 8 decision
(1) Was the UT entitled to set aside the FTT's decision?
(i) Adequacy of the FTT's reasons:
(ii) Error of law or Wednesbury public law flaw:
(2) Was the UT's approach to proportionality flawed?
Lady Justice Sharp
Lord Justice Sullivan