R BB (Algeria) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Gloster,Mr Justice Henderson,Lord Justice Longmore |
| Judgment Date | 26 January 2016 |
| Neutral Citation | [2016] EWCA Civ 25 |
| Date | 26 January 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2013/2925 |
[2016] EWCA Civ 25
IN THE COURT OF APPEAL
CIVIL APPEALS LIST
ON APPEAL FROM THE UPPER TRIBUNAL (ASYLUM AND IMMIGRATION CHAMBER)
IA178792012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lady Justice Gloster
and
Mr Justice Henderson
Case No: C5/2013/2925
Mr Christopher Jacobs (instructed by Kamberley Solicitors) for the Appellant
Mr Neil Sheldon (instructed by Government Legal Department) for the Respondent
Hearing dates: Tuesday 20 th October 2015
Introduction
The appellant, Benchoucha Belgacem ("the Appellant"), appeals against the decision of the Upper Tribunal, in a determination promulgated on 26 March 2013, dismissing his appeal against the decision of the Respondent ("the Secretary of State") dated 2 August 2012 to remove him from the UK. The Secretary of State had previously determined in a decision dated 31 March 2011 that he did not, as at that date, qualify for leave to remain on the grounds of continuous residence (14 years) under what was paragraph 276B of the then current Immigration Rules (HC 365). I shall refer to the Immigration Rules as they stood up to 8 July 2012 as "the old Rules".
The Secretary of State's decision was upheld by the First-tier Tribunal ("the FTT") on the Appellant's appeal, but an apparent error of law in the FTT's determination led to the case being reconsidered by the Upper Tribunal. The Appellant appeals to this court against the Upper Tribunal's decision pursuant to permission granted by Maurice Kay LJ on an oral renewal.
Factual and Procedural Background
The Appellant is an Algerian national, born on 8 November 1968. He entered the United Kingdom illegally and used false documents to obtain a National Insurance number. On 21 February 2011 he applied for indefinite leave to remain in the UK on the basis of: (i) long (albeit unlawful) residence pursuant to the old Rules, claiming to have entered the UK on 31 December 1996; and (ii) his right to respect for his private life under Article 8 of the European Convention on Human Rights ("ECHR"). The application was rejected by the Secretary of State on 31 March 2011. The principal reason for the rejection of the application was the Appellant's failure to provide any (or any adequate) evidence to demonstrate that he had lived continuously in the UK for 14 years as required by paragraph 276B of the old Rules.
On 13 June 2011 the Appellant's solicitors made further representations to the Secretary of State to reconsider the Appellant's application. On 26 August 2011, the Appellant's further representations were rejected.
On 13 June 2012 new Immigration Rules were promulgated by the Secretary of State pursuant to a Statement of Changes in the Immigration Rules (HC 194). These came into force on 9 July 2012. I shall refer to these new Immigration Rules incorporating the changes made by HC 194 as "the new Rules". The material provisions of paragraph 276B of the old Rules were effectively replaced by paragraph 276ADE of the new Rules. Paragraph 276ADE provides (amongst other things) that at least 20 years continuous residence are required to support an application of the type made by the Appellant for leave to remain in the UK on the grounds of his private life. The new Rules also contained certain transitional provisions which were the focus of argument on this appeal. I set out the detailed provisions of the new Rules below.
On 2 August 2012 the Secretary of State notified the Appellant of his liability to be removed from the UK. Unlike the earlier decision refusing his application for indefinite leave to remain, the decision to notify the Appellant of his liability to be removed was an appealable decision pursuant to the Nationality, Immigration and Asylum Act 2002.
On 6 August 2012 the Appellant lodged his appeal to the FTT. His statement of additional grounds reads as follows:
"1. The applicant applied for infinite [sic] leave to remain in the UK as a long residence [sic] after 14 years' continuous residence.
2. The appellant came to the UK on 31 December 1996 and have [sic] since remained living in the UK.
3. The Home Office acted contrary to the provisions of the Immigration Rules in coming to the refusal decision. The respondent overlooked the relevant facts and omitted material considerations in reaching the decision to refuse the application."
On 5 September 2012 a further Statement of Changes to the Immigration Rules (HC565) was promulgated which took effect on 6 September 2012. I will refer to the changes effected by HC565 as "the HC565 changes". I set out details of the relevant provisions below.
The Appellant's appeal to the FTT was heard on 2 October 2012. There were two aspects to the appeal. First, the Appellant asserted that he had indeed lived in the UK since 31 December 1996 and the Secretary of State had been wrong to conclude otherwise. Second, he contended that removal would breach his Article 8 rights to respect for his private life.
The appeal was dismissed on 9 October 2012. The FTT concluded that the Appellant had failed to prove his presence in the UK prior to August 1998. Accordingly, the Secretary of State had been correct to determine that he had not accumulated 14 years residence at the time she made her decision. The material conclusion of the FTT concerning the Appellant's length of residence was expressed at §§32–33 of its judgment in the following terms:
"The first document I find I can rely upon is the letter from the Department of Social Security dated 19 August 1998.
Accepting that the appellant had been in the United Kingdom from that date, or even a few weeks beforehand when he made his application for a national insurance number would mean that at the time of his application on 21 February 2011 he had been in the United Kingdom for 12 1/2 years and not the 14 years required under paragraph 276B(i)(b) of HC395.
….
On the evidence before me upon which I can rely, I do not find that the appellant proves that he was in the United Kingdom prior to August 1998 and that therefore he does not prove that he had been present for the required minimum period of 14 years at the time of his application to the respondent."
Although the FTT did not identify a specific date on which the Appellant's continuous residence began, the Upper Tribunal proceeded on the basis that "the earliest date on which the appellant could have been in this country", given the findings of the FTT, was 1 August 1998. For the purposes of this appeal, Mr Neil Sheldon, counsel for the Secretary of State, was content to adopt 1 August 1998 as the start of the Appellant's continuous residence in the UK.
As to the Appellant's claim under Article 8, the FTT concluded that the disruption that removal would cause to the Appellant's private life (no family life having been established in the UK) was not disproportionate to the legitimate aim of the maintenance of fair and firm immigration control.
The Appellant appealed to the Upper Tribunal. The appeal was heard on 15 February 2013 and the Upper Tribunal's decision promulgated on 26 March 2013. The Upper Tribunal determined that there had been an error of law in the determination of the FTT in that the latter had wrongly approached the question whether the decision of the Secretary of State was in accordance with the old Rules by calculating the Appellant's length of residence in the UK from his date of arrival (1 August 1998) to the date of the Secretary of State's decision (31 March 2011). The Upper Tribunal accepted that the proper approach should have been to calculate the period of continuous residence up to the date on which the Secretary of State gave the Appellant notice of his liability to removal, i.e. 2 August 2012.
Having identified that error of law, the Upper Tribunal went on to consider whether that error was material to the outcome of the appeal. The Upper Tribunal concluded that the error could not have been material for the reasons which it gave in §§14 -15 of its judgment, where it said:
"14. On the judge's findings, this appellant was not present in the UK before August 1998. Accordingly, he could not have qualified under the 14 year residence provision which existed before the Rules were changed on 9 July 2012. After that date, there was no equivalent rule on which the appellant could rely.
15. Applying the Rules as they were on 1 August 2012, the earliest date on which the appellant could have been in this country for a continuous period of fourteen years (on the basis of Judge Bryant's findings), his application could not then have succeeded under the Rules. There is no transitional provision which could assist him either. At the time when the respondent made the removal decision on 2 August 2012, this decision was in accordance with the Rules then in force, and by that date the appellant had not previously acquired any rights to remain under Rules previously in force. This application could not have succeeded under the Rules, either when it was made (because the appellant had not then been present for fourteen years) or at any time after he had been present for fourteen years, because by that time the Rules had been changed. There was no time at which the appellant could have made an application which could have been successful, and the transitional provisions do not assist someone whose claim could not succeed simply because the Rules had changed before he had acquired any rights under the old Rules to remain."
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