OA – First Appellant v The Secretary of State for the Home Department

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeMr Justice Lane,Finch,Lane J
Judgment Date15 January 2019
Neutral Citation[2019] UKUT 65 (IAC)
Date15 January 2019

[2019] UKUT 65 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

THE HON. Mr Justice Lane, PRESIDENT

UPPER TRIBUNAL JUDGE Finch

Between
OA – First Appellant
OB – Second Appellant
EB – Third Appellant (Anonymity Order Maintained)
Appellants
and
The Secretary of State for the Home Department
Respondent
Representation:

For the appellants: Mr M Jibowu, Solicitor, MJ Solomon & Partners (Commercial Rd)

For the respondent: Mr S Walker, Senior Home Office Presenting Officer

OA and Others (human rights; ‘new matter’; s.120) Nigeria

Human rights appeals

(1) In a human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002, a finding that a person (P) satisfies the requirements of a particular immigration rule, so as to be entitled to leave to remain, means that (provided Article 8 of the ECHR is engaged), the Secretary of State will not be able to point to the importance of maintaining immigration controls as a factor weighing in favour of the Secretary of State in the proportionality balance, so far as that factor relates to the particular immigration rule that the judge has found to be satisfied.

(2) The fact that P completes ten years' continuous lawful residence during the course of P's human rights appeal will generally constitute a “new matter” within the meaning of section 85 of the 2002 Act. The completion of ten years' residence will normally have a material bearing on the sole ground of appeal that can be advanced in a human rights appeal; namely, whether the decision of the Secretary of State to refuse P's human rights claim is unlawful under section 6 of the Human Rights Act 1998. This is because paragraph 276B of the Immigration Rules provides that a person with such a period of residence is entitled to indefinite leave to remain in the United Kingdom, so long as the other requirements of that paragraph are met.

(3) Where the judge concludes that the ten years' requirement is satisfied and there is nothing to indicate an application for indefinite leave to remain by P would be likely to be rejected by the Secretary of State, the judge should allow P's human rights appeal, unless the judge is satisfied there is a discrete public interest factor which would still make P's removal proportionate. Absent such factors, it would be disproportionate to remove P or require P to leave the United Kingdom before P is reasonably able to make an application for indefinite leave to remain.

(4) Leaving aside whether P has any other Article 8 argument to deploy (besides paragraph 276B) and in the absence of any policy to give successful human rights appellants a particular period of limited leave, all the Secretary of State is required to do in such a case is grant P a period of leave sufficient to enable P to make the application for indefinite leave to remain. If P subsequently fails to make such an application, P will continue to be subject to such limited leave as the Secretary of State has granted in consequence of the allowing of the human rights appeal.

Statements of additional grounds

(5) A statement of additional grounds for the purposes of section 120 of the 2002 Act must be made in writing.

DECISION AND REASONS
A. Introduction
1

This is the re-making of decisions in the appeals of three appellants, who are citizens of Nigeria born respectively in 1979, 2007 and 2010. The first appellant is the mother of the second and third appellants. She entered the United Kingdom in October 2007, with leave as a student.

2

The first appellant was subsequently granted periods of further leave to remain as a student, followed by leave to remain as a Tier 1 Migrant, until 4 May 2013. After this, she became the dependent partner of the father of the second and third appellants, and was given leave in that capacity until 30 January 2016, as were the second and third appellants.

3

On 29 January 2016, the appellants applied for leave to remain. Pursuant to section 3C of the Immigration Act 1971, this had the effect of extending their existing leave.

4

On 9 August 2016, the respondent refused the applications for leave, which he also treated as human rights claims. The respondent's decision, in respect of each of the appellants, constituted a refusal of their human rights claims, with the result that the appellants had a right of appeal to the First-tier Tribunal under section 82 the Nationality, Immigration and Asylum Act 2002.

B. The appeals in the First-tier Tribunal
5

On 28 February 2018, First-tier Tribunal Judge Fox, following a hearing at Hatton Cross on 15 January 2018, decided that the First-tier Tribunal had no jurisdiction to entertain the appeals. On 21 August 2018, Upper Tribunal Judge Finch set aside Judge Fox's decision and stated that the re-making of the decisions in the appeals would be undertaken by the Upper Tribunal. This was the purpose of the hearing before us on 25 October 2018.

6

Judge Fox's conclusion that he did not have jurisdiction involved the fact that, by the time the appeals came to the hearing, the first and second appellants had completed ten years' continuous lawful residence in the United Kingdom. They accordingly submitted that they each met the requirements of paragraph 276B of the Immigration Rules, which reads as follows:-

“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.

  • (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, associations and employment record; and

    • (d) domestic circumstances; and

    • (e) compassionate circumstances; and

    • (f) any representations received on the person's behalf; and

  • (iii) the applicant does not fall for refusal under the general grounds for refusal.

  • (iv) the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.

  • (v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –

    • (a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or

    • (b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.”

7

Judge Fox found that the issue of paragraph 276B was not one that he had jurisdiction to consider. However, Judge Fox failed to appreciate that the appellants were, in reality, seeking to raise a “new matter”, within the meaning of section 85(6) of the 2002 Act. Unfortunately, Judge Fox proceeded on the basis that section 85A of that Act was the key provision, without appreciating that this section had been repealed in October 2014.

C. New matters and statements of additional grounds
8

Section 85(5) of the 2002 Act provides that the Tribunal must not consider a new matter unless the Secretary of State has given the Tribunal consent to do so.

9

Section 85(6) defines a “new matter” as follows:-

“(6) A matter is a “new matter” if –

  • (a) it constitutes a ground of appeal of the kind listed in section 84, and

  • (b) the Secretary of State has not previously considered the matter in the context of –

    • (i) the decision mentioned in section 82(1), or

    • (ii) the statement made by the appellant under section 120.”

10

Section 120 of the 2002 Act provides as follows:-

Requirement to state additional grounds for application etc.

  • (1) Subsection (2) applies to a person (‘P’) if –

    • (a) P has made a protection claim or a human rights claim,

    • (b) P has made an application to enter or remain in the United Kingdom, or

    • (c) a decision to depart or remove P has been or may be taken.

  • (2) The Secretary of State or an immigration officer may serve a notice on P requiring P to provide a statement setting out –

    • (a) P's reasons for wishing to enter or remain in the United Kingdom,

    • (b) any grounds on which P should be permitted to enter or remain in the United Kingdom, and

    • (c) any grounds on which P should not be removed from or required to leave the United Kingdom.

  • (3) A statement under subsection (2) need not repeat reasons or grounds set out in –

    • (a) P's protection or human rights claim,

    • (b) the application mentioned in subsection (1)(b), or

    • (c) an application to which the decision mentioned in subsection (1)(c) relates.

  • (4) Subsection (5) applies to a person (‘P’) if P has previously been served with a notice under subsection (2) and –

    • (a) P requires leave to enter or remain in the United Kingdom but does not have it, or

    • (b) P has leave to enter or remain in the United Kingdom only by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending decision or appeal).

  • (5) Where P's circumstances have changed since the Secretary of State or an immigration office was last made aware of them (whether in the application or claim mentioned in subsection (1) or in a statement under subsection (2) or this subsection) so that P has –

    • (a) additional reasons for wishing to enter or remain in the United Kingdom,

    • (b) additional grounds on which P should be permitted to enter or remain in the United Kingdom, or

    • (c) additional grounds on which P should not be removed from or required to leave the United Kingdom, P must, as soon as reasonably practicable, provide a supplementary statement to the Secretary of State...

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