Abdul Saleem Koori and Others v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice Underhill,Mr Justice Peter Jackson |
| Judgment Date | 14 June 2016 |
| Neutral Citation | [2016] EWCA Civ 552 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2015/0254 |
| Date | 14 June 2016 |
[2016] EWCA Civ 552
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
DEPUTY JUDGES McCARTHY AND ROBERTSON
IA/04622/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Elias
Lord Justice Underhill
and
Mr Justice Peter Jackson
Case No: C4/2015/0254
Mr Zane Malik and Mr Darryl Balroop (instructed by MLC Solicitors) for the Appellant
Mr Andrew Sharland and Ms Holly Stout (instructed by the Government Legal Department) for the Respondent
Hearing date: 17 May 2016
The five appellants in this appeal are the parents and three minor children of an Indian family. They applied for leave to remain in the UK on 27 September 2012 on the basis of the connections they had developed within the UK and the fact that the children had been resident in the UK for over seven years. The Secretary of State refused to grant leave to remain on 27 September 2013 exactly a year to the day after their application. That was not an appealable decision but judicial review proceedings were instituted to challenge it. That action was settled on the basis that the Secretary of State would make a fresh decision, which she did on 3 January 2014. She rejected their human rights claims and made an order for their removal. That was an appealable decision. There was an appeal to the First Tier Tribunal ("FTT") which was dismissed by Judge JS Pacey on 19 June 2014. Permission to appeal to the UpperTribunal ("the UT") was granted but the UT dismissed the appeal in a determination promulgated on 24 September 2014. We are now hearing the appeal from that decision.
Legislation
The relevant legislation in issue, and which was in force at the date of the Secretary of State's decision, is paragraph 276ADE of the Immigration Rules which is as follows:
"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 2.3 and S-LTR.3.1 to S-LTR.4.4. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; 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 there would be very significant obstacles to the applicant's integration into the
Sub-paragraph (iv) relates to applications made by minors whereas sub-paragraphs (iii), (v) and (vi) relate to applications made by adults. I will call the requirement in sub-paragraph (iv) that the applicant should have lived continuously in the UK for seven years "the seven year rule". It is important to note, and is highly material in this case, that the seven years must be calculated as at the date of the application and not the date of decision.
Another material feature of this case is that sub-paragraph (iv) changed with effect from the 13 December 2012 (which was after the applications for leave to remain had been made.) Until that time the phrase "and it would not be reasonable to require the applicant to leave the UK" (which I shall call "the reasonableness test") was not part of the rule. It only appears in the later amended version.
The background
The father of the family, the first appellant, came to the UK on 4 April 2003 with a visa exemption to work at the Consulate General of India. His family, which at that time was his wife and two children, followed him to the UK on 22 October 2005, also with visa exemptions. He left his post in December of that year and thereafter remained in the UK without leave. A third child was born in the UK on 1 June 2007.
Each member of the family applied under article 8 for leave to remain in the UK. The application did not suggest that the children satisfied the seven year rule. On the contrary, the original application said that they had lived in the UK "for almost seven years". The Secretary of State rejected the applications but following a pre-action protocol letter dated 2 December 2013, she agreed to reconsider the matter. Again, it is pertinent to note that although the pre-action letter stated that the two older children had been resident in the UK for over seven years, it did not suggest that para.276ADE was applicable. Somewhat confusingly, the letter said, as one of the complaints relating to the original decision, that the Secretary of State "has not applied the spirit of DP 396 to the facts of the case". DP 396 was the predecessor of paragraph 276ADE and was no longer in force when the letter was written. The reference to the "spirit" of the rule is a clear recognition that the rule was not strictly applicable. It suggests that since the applicants had almost reached seven years at the date of the application, and had done so by the date of the decision, the Secretary of State ought at least to have approached the matter with the seven year rule in mind.
Curiously, in the reconsideration decision dated 3 January 2014, the Secretary of State stated, in the context of considering paragraph 276ADE, that the two older children had been present for seven years. She went on to find, however, that it was reasonable to expect them to leave the UK. So she applied the later version of the paragraph 276ADE. It is now common ground that this was in fact the version which ought to have been applied.
It is part of the case advanced by Mr Malik, counsel for the appellants, that the Secretary of State had conceded that the seven year rule was satisfied. He says that she must have known that strictly it had not been, but was prepared to act as though it had. This was a conscious executive decision, by which she was bound, to treat the seven year rule as satisfied. It is always open to the Secretary of State to allow someone to stay outside the rules (see section 3(1) of the Immigration Act 1971) and this includes treating a conditional element of a rule as satisfied when in fact it is not.
I do not think that on the facts of this case it is a sustainable inference that the seven year rule requirement was deliberately waived. In my judgment it is clear from an earlier part of the decision that the Secretary of State had simply failed to take on board the fact that the relevant time for determining the seven year rule was the date of application and not the date of decision. She said this with respect to an identically worded provision in Paragraph EX.1 of Appendix FM which also applies the seven year rule from the date of application:
"In your case it is accepted that you and your wife enjoy a family life with your children and that the older children have resided in the United Kingdom for a period of seven years at the date of the decision. Therefore as a family unit you would meet the requirements of EX 1(a)(i) of Appendix FM." (emphasis added.)
That was plainly an error. The requirements of EX.1 were not satisfied and the Secretary of State was in error in saying that they were. She failed to appreciate that the focus should have been on the date of application and not the date of decision. In my judgment the obvious inference is that she made exactly the same mistake with respect to paragraph 276ADE(iv).
In the course of argument, Underhill LJ raised the possibility that the Secretary of State might be agreeing to waive compliance with the seven year rule requirement on the grounds that if the two older children were to lodge a fresh application, they would satisfy it, and she may have thought that this would be a pointless exercise. However, there is no general policy for waiving the requirement in that way, and it would undermine the requirement in the rule that time should be assessed as at the date of application were such a policy to be applied as a matter of course. Moreover, if she were intending to make a particular concession at odds with the terms of the rule in this particular case, in circumstances where there was no obvious reason why she should pick out this particular family for special treatment, I would have expected her to state that she was intending to do this and why. In my view there can be no doubt that this was simply a mistake properly to apply the law to the facts of the case.
The case before the FTT
In the appeal to the FTT, the father, the first appellant, said that he had lost contact with his wider family in India and his wife also claimed to have severed contact with her family. He gave a convoluted account to explain why he had not returned to India after leaving the Consulate. He claimed that he had no home, property or job in India and that his family was now settled in England. The children had adapted to British culture, had English friends and had settled happily in their schools.
The FTT considered whether the appellants qualified for leave both first under the terms of paragraph 276ADE and then, having rejected that claim, under article 8 outside the rules. I will take them out of...
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