Meera Muhiadeen Haleemudeen v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Beatson,Lady Justice Sharp,Lord Justice Sullivan
Judgment Date02 May 2014
Neutral Citation[2014] EWCA Civ 558
Docket NumberCase No: C5/2013/2616
CourtCourt of Appeal (Civil Division)
Date02 May 2014

[2014] EWCA Civ 558



Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Sullivan

Lord Justice Beatson


Lady Justice Sharp

Case No: C5/2013/2616

Meera Muhiadeen Haleemudeen
Secretary of State for the Home Department

Paul Richardson (instructed by Kothala and Co Solicitors) for the Appellant

Jonathan Hall QC (instructed by The Treasury Solicitor) for the Respondent

Hearing date: 15 April 2014

Lord Justice Beatson

I. Introduction


This is an appeal by Mr Meera Muhiadeen Haleemudeen against the decisions of the Upper Tribunal (Immigration and Asylum Chamber) ("UT") dated 27 March 2012 and 11 June 2013. In its first decision in March 2012, the UT set aside a decision of the First Tier Tribunal ("FTT") promulgated on 3 January 2013. It concluded that the determination by the FTT that Mr Haleemudeen's removal from the United Kingdom would be a disproportionate interference with his right to private life under Article 8 of the European Convention on Human Rights ("ECHR") contained errors of law because the reasons given were not sufficient. It set the determination aside. In its June decision, the UT re-made the decision, found that removing Mr Haleemudeen would not be disproportionate or unlawful, and dismissed his appeal against the decision of the Secretary of State to remove him.


The underlying decisions of the Secretary of State are dated 1 and 16 October 2012. The first refused Mr Haleemudeen's application, dated 28 February 2012, for indefinite leave to remain in the United Kingdom on the basis of the 10 years continuous lawful residence provisions in paragraph 276B of the Immigration Rules (HC 395). It also concluded that his removal from the United Kingdom would not breach his right to private life under ECHR Article 8, and refused to vary his leave. In the second, dated 16 October, the Secretary of State decided that Mr Haleemudeen should be removed from the United Kingdom.


Permission to appeal to this court was given by Upper Tribunal Judge Hugh Storey. He stated that he did not consider that Deputy Upper Tribunal Judge Bruce was right to find that Tribunal Judge Brown had given insufficient reasons for allowing the appeal. He considered that "in the absence of any proper sufficient reasoned basis for interference, the DUT Judge should not have found a material error of law and should not have set aside [the FTT's] decision".


There are therefore two issues before this court. The first is whether the decision of the FTT contained material errors of law which justified the UT setting it aside. The second arises if the UT was entitled to set aside the FTT's decision. It is whether the UT's approach to the proportionality exercise was flawed. If the UT's approach to Article 8 and proportionality was itself legally flawed, a third issue arises. It is whether, despite the error, in view of the circumstances of this case, either this court should itself assess the proportionality of the Secretary of State's decision to remove Mr Haleemudeen from the United Kingdom or that it should dismiss the appeal because, if the matter is remitted, it is inevitable that the tribunal would find that the decision was lawful and not a disproportionate interference with Mr Haleemudeen's rights under Article 8.


The provisions of the Immigration Rules in HC 395 as amended reflecting the Secretary of State's current policy on the relationship between a person's right to family and private life under Article 8 and the needs of immigration control are complicated. The extent to which Article 8 operates apart from and outside the Immigration Rules is producing a burgeoning body of jurisprudence. This case concerns a decision about a person who, it is common ground, has sought to comply with the requirements of United Kingdom immigration law and policy for the twelve and a half years he has been in this country. The clear and focused written and oral submissions, on behalf of Mr Haleemudeen by Mr Paul Richardson, and, on behalf of the Secretary of State by Mr Jonathan Hall QC, have been of significant assistance to me in navigating my way through the rules and the general law on Article 8.

II. The factual background


Mr Haleemudeen, now aged 41, is a citizen of Sri Lanka. Broadly speaking, he has been in this country lawfully since 22 September 2001, first on a student visa, between 22 October 2007 and 28 July 2009 as a Tier 1 Highly Skilled Migrant, and, since 29 July 2009 as a Tier 1 General Migrant. During the period when he was lawfully in this country as a student, he made several trips back to Sri Lanka, including one in April 2005, during which he got married. His first child was born in Sri Lanka on 14 January 2006. There was a gap of 23 days in Mr Haleemudeen's lawful residence as a student between 1 and 23 March 2006. His explanation for this was that he fell ill when he was in Sri Lanka in October 2005. On 10 February 2006, after his health improved, he returned to the United Kingdom but his condition then deteriorated. Severe and constant headaches required him to avoid sunlight and confined him to his to home for the best part of February and March 2006. The result was that he did not make an in-time application. His out of time application on 23 March 2006 was successful.


On 26 March 2007, very shortly before Mr Haleemudeen's final student visa was due to expire on 31 March, he applied for leave as a Highly Skilled Migrant ("HSM"). The Secretary of State refused this application on 19 April 2007. Although, as a result Mr Haleemudeen's presence in the United Kingdom was without leave after 31 March, it remained lawful because he had an in-country right of appeal against the decision. Section 3C(1)(b) of the Immigration Act 1971 provided that a person's leave was extended during the period in which he could appeal against an immigration decision. On 28 April 2007, before the expiry of that period, Mr Haleemudeen returned to Sri Lanka in order to re-apply for a HSM visa from Colombo. His application was successful and, on 22 October 2007, he returned to the United Kingdom with a HSM visa valid to 12 July 2009. He was accompanied by his wife and 21 month old daughter. A second child was born to the family in the United Kingdom on 10 May 2008. Mr Haleemudeen was subsequently granted leave under Tier 1 (General Migrants) from 28 July 2009 to 28 July 2012.


Chronologically, the next significant event is that, on 20 September 2010, at Barkingside Magistrates' Court, Mr Haleemudeen pleaded guilty to driving without insurance and without a licence and was fined £245. He stated that the offences were committed because his International Drivers Licence had lost its validity in the United Kingdom after one year and he had only a provisional driving licence. The FTT did not wholly accept Mr Haleemudeen's claimed innocence in relation to the offences because (see [37]) by the time the offences were committed he had lived and worked in the United Kingdom for a considerable time. It, however, stated that the offences were not at the highest end of the scale of offending. In its June 2013 decision, the UT (at [20]) accepted that Mr Haleemudeen committed these strict liability offences with no intention of doing so. The significance of this conviction is that one of the requirements for indefinite leave on the ground of continuous lawful residence is that the applicant does not have any unspent convictions. Mr Haleemudeen's conviction was not spent either on the date of his application for indefinite leave or on the date of the Secretary of State's decision. It will not become "spent" until 19 September 2015.


In 2011 the family travelled to Sri Lanka for a holiday for a period of twenty days. They stayed in the family house, a house which is in Mr Haleemudeen's wife's name, and in which her parents live when he and his family are in this country.


Mr Haleemudeen is the Assistant Manager of a Tesco Express store in Whitechapel. His wife is a part-time student and hopes to become a nursery school teacher. The couple have made many good friends in this country and Mr Haleemudeen undertakes charity work for the Sri Lankan Muslim community of east London. One of the children has been here since she was 21 months old and the other was born in this country. They are settled in school and have friends. The eldest daughter, who is being treated for asthma, is doing well at school.


On 28 February 2012 Mr Haleemudeen applied for indefinite leave to remain in the United Kingdom. The basis of his application under the Immigration Rules was continuous lawful residence in the United Kingdom for ten years. In a letter dated 31 March 2012 his solicitors, Kothala and Co, made further representations about the 23 day gap in his legal residence in the United Kingdom from 1 to 23 March 2006 (see [7] above) and the period he spent outside the United Kingdom between 28 April and 22 October 2007 (see [8] above). In relation to the latter, it was stated that in the light of section 3C of the Immigration Act 1971 and the Secretary of State's November 2011 Long Residence Guidance, the time spent outside the United Kingdom in 2007 was not to be considered as breaking his continuous residence.


The leave of Mr Haleemudeen's wife and children expired on 28 July 2012, before the Secretary of State had made her decision on his application for indefinite leave. At the FTT hearing, he acknowledged that after 28 July his wife and children were unlawfully in...

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