Patel (Historic Injustice; Niaa Part 5A)

The Claimant, a citizen of India, entered the United Kingdom in October 2010, with entry clearance as a Tier 4 (General) Student. Thereafter, she gained employment with Bakkavor Foods Limited and was granted leave to remain as a Tier 1 (Highly Skilled Post-Study) Migrant until 28 May 2014. In January 2014, the Claimant became aware that there was a potential problem with her sponsorship by the company following the expiry of her leave. Accordingly, she submitted a written grievance claiming that she had been assured sponsorship would not be a problem at her initial interview with the company. On 23 May 2014, following a protracted grievance process, Bakkavor Foods informed the Claimant that they had decided not to sponsor her nor support a further extension to her leave to remain in the United Kingdom. They then dismissed the Claimant from her employment with effect from 28 May 2014. In June 2014 the Claimant commenced an action in the Employment Tribunal (“ET”) against Bakkavor Foods for wrongful dismissal and discrimination. On 25 June 2014 she made an application for leave to remain in the United Kingdom outside the Immigration Rules HC 395 (as amended) to enable her to pursue the ET case. The Secretary of State for the Home Department refused the application in August 2014. The Claimant sought judicial review of that decision. In January 2015 the ET found that the Claimant had not been discriminated against but awarded her one week's pay on the grounds that Bakkavor Foods were found to have breached their contract with the Claimant by not paying her for the agreed notice period. In November 2016 the judicial review of the Secretary of State's August 2014 decision was dismissed on the basis that it was by that time academic since the ET proceedings had concluded.

In April 2018 the Claimant applied for leave to remain in the United Kingdom based on her private and family life. In January 2019, the Secretary of State refused the application. The Claimant appealed to the First-tier Tribunal (“FtT”) relying primarily on her right to private life. She also claimed that she had suffered a “historic injustice” as a result of her experience as an employee of Bakkavor Foods. The FtT dismissed the appeal finding that the Claimant had established only a limited private life in the United Kingdom and that it had been established at a time when her status in the United Kingdom “was precarious or unlawful”. The FtT considered the treatment the Claimant received from Bakkavor Foods and her consequent grievance which the ET had described as understandable. Although the FtT recognised that it would have been very disappointing not to have been sponsored in those circumstances, it did not consider that that bad treatment and the resulting grievance meant that effective immigration control and the Immigration Rules should be ignored.

Before the Upper Tribunal, the Claimant submitted that the FtT had failed lawfully to determine the key issue as to whether there had been “historic-injustice” committed by the Secretaty of State and the consequences that flowed from that commission in a proportionality assessment. In particular, the Claimant submitted that the FtT was required to reduce the importance that would otherwise be given to immigration control, because of her experiences with Bakkavor Foods. The Claimant also submitted that the FtT had adopted too high a threshold in finding that she had “not established a very strong or compelling claim required to outweigh the public interest in immigration control”. Such language was indicative of section 117C(6) which applied only to foreign criminals sentenced to four or more years' imprisonment and the Claimant was not such a person.

Held, dismissing the appeal:

(1) The expression “historic injustice”, as used in the immigration context, should be reserved for cases such as those concerning certain British Overseas citizens or families of Gurkha ex-servicemen, which involved a belated recognition by the United Kingdom government that a particular class of persons had been wrongly treated, in immigration terms, in the past; and that that injustice should be recognised in dealing with applications made now: Patel and Others v Entry Clearance Officer (Mumbai)[2010] EWCA Civ 17 and AP (India) v Secretary of State for the Home Department[2015] EWCA Civ 89 applied. The fact that the injustice existed would be uncontroversial. It would be generally recognised. It would apply to a particular class of persons. Unlike cases of what might be described as “historical injustice”, the operation of historic injustice would not depend on the particular interaction between the individual member of the class and the Secretary of State. The effects of historic injustice on the immigration position of the individual were likely to be profound, even determinative of success, provided that there was nothing materially adverse in their immigration history (paras 34 – 41).

(2) Cases that might be described as involving “historical injustice” were where the individual had suffered as a result of the wrongful operation, or non-operation, by the Secretary of State of her immigration functions. Examples were where the Secretary of State had failed to give an individual the benefit of a relevant immigration policy: AA (Afghanistan) v Secretary of State for the Home Department[2007] EWCA Civ 12; where delay in reaching decisions was the result of a dysfunctional system: EB (Kosovo) v Secretary of State for the Home Department[2008] UKHL 41; or where the Secretary of State formed a view about an individual's activities or behaviour, which led to an adverse immigration decision; but where her view turned out to be mistaken: Ahsan v Secretary of State for the Home Department[2017] EWCA Civ 2009. Each of those failings might have an effect on an individual's Article 8 ECHR case; but the ways in which that might happen differed from the true “historic injustice” category (paras 42 – 48).

(3) The Claimant could not successfully contend that she had suffered “historic injustice”. She was not a person of a class that had been affected by what was now recognised by the United Kingdom government as unfair or unjust treatment. Nor could the Claimant show she had been subjected to “historical injustice”. She could not point to any beneficial policy of the Secretary of State, which had been wrongly withheld in her case; nor had the Secretary of State reached an erroneous decision that the Claimant was no longer entitled to leave because of some misbehaviour on her part. The Claimant had been without leave to remain for several years, a matter which the ET had considered in some detail. The Claimant's submission that she had been “the victim of judicial scuppering for the past five years” was rejected. It was also plainly untrue that the ET found the Claimant had suffered discrimination. That Tribunal expressly held to the contrary (paras 71 – 73).

(4) The Claimant was unable to point to any authority or principle that showed the FtT erred in law in refusing to reduce the weight to be given to immigration control, notwithstanding her employment history. There was no merit in the submission that the Claimant found herself without leave to remain, solely as a result of the misfeasance of Bakkavor Foods. There was no evidence to show that the Claimant sought to obtain sponsorship from another employer, from the point in January 2014 when she realised there were difficulties with the company keeping her on, following the expiry of her visa. Nor was there any evidence that the Claimant sought at that time to bring her difficulties to the attention of the Secretary of State. More fundamentally, however, it was difficult to see how the Secretary of State could be expected to have intervened in any meaningful way. It was wholly unwarranted to expect the Secretary of State to engage in a form of micro-management of the affairs of sponsor companies. Finally, just because there were employers whose staff sometimes behaved in sub-optimal ways did not mean that the weight to be given to immigration control should be reduced: Mansur (immigration advisor's failings: Article 8) Bangladesh[2018] UKUT 274 (IAC) considered (paras 74 – 81).

(5) Section 117B(1) of the Nationality. Immigration and Asylum Act 2002 (“the 2002 Act”) provided that the maintenance of effective immigration controls was in the public interest. That statement could not be overridden by a judicial decision. In the cases of true “historic injustice”, however, the weight to be given to the public interest could be so diminished that any private life which engaged Article 8(1) would outweigh the diminished public interest. In all cases where, for whatever reason, the public interest in the maintenance of effective immigration controls fell to be given less than its ordinary weight, the usual course should be for the judge so to find in terms, when addressing section 117B(1). The same result might be achieved, at least in some situations, by qualifying the consideration in section 117B(4) that little weight should be given to a private life formed when the person concerned was in the United Kingdom unlawfully. Judicial fact-finders should, however, avoid any recourse to double-counting, whereby not only was the weight to be given to effective immigration controls diminished but also, for the same reason, a private life was given more weight than would otherwise be possible by the undiluted application of section 117B(4). The weight to be given to the public interest in the maintenance of effective immigration controls was...