Jacqueline Elizabeth Edgehill and Another v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Jackson,Lady Justice Black,Lord Justice Laws
Judgment Date02 April 2014
Neutral Citation[2014] EWCA Civ 402
Date02 April 2014
Docket NumberCase No: C5/2013/1417 & C5/2013/1890

[2014] EWCA Civ 402

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL OF THE IMMIGRATION AND ASYLUM CHAMBER

IA/00063/2013, IA/08417/2012

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Laws

Lord Justice Jackson

and

Lady Justice Black

Case No: C5/2013/1417 & C5/2013/1890

Between:
(1) Jacqueline Elizabeth Edgehill
(2) Hassina Abdallah Bhoyroo
Appellants
and
Secretary of State for the Home Department
Respondent

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: 25 th February 2014

Lord Justice Jackson
1

This judgment is in five parts, namely:

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 9 th 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)

2

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.

3

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 13 th June 2012. Those changes in the Immigration Rules came into effect on 9 th July 2012.

4

I shall refer to the Immigration Rules as they stood up to 8 th July 2012 as "the old rules". I shall refer to the Immigration Rules as they were on and after 9 th July 2012 as "the new rules".

5

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."

6

Rule 276ADE of the new rules provides:

" Private life

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."

7

The transitional provisions set out at the front of the Statement of Changes in Immigration Rules provide:

" Implementation

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."

8

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."

9

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.

10

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.

11

After these introductory remarks I must now turn to the facts.

JE

12

JE is a Jamaican national, now age 45, who came to the UK on 14 th September 1998. She was granted leave to remain as a student for a limited period. On 22 nd 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 7 th 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 21 st June 2012 the First-tier Tribunal dismissed both limbs of JE's appeal.

13

JE appealed to the Upper Tribunal on the article 8 issue. By a decision dated 11 th 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."

14

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 9 th July 2012.

HB

15

HB is a citizen of Mauritius, now age 52, who came to the UK on 8 th December 2003. Originally she had leave to enter as a visitor. Thereafter she was given...

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