Upper Tribunal (Immigration and asylum chamber), 2020-11-25, [2020] UKUT 351 (IAC) (Patel (historic injustice; NIAA Part 5A))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Norton-Taylor |
| Status | Reported |
| Date | 25 November 2020 |
| Published date | 22 December 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | historic injustice; NIAA Part 5A |
| Hearing Date | 06 November 2020 |
| Appeal Number | [2020] UKUT 351 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Patel (historic injustice; NIAA Part 5A) [2020] UKUT 00351(IAC)
THE IMMIGRATION ACTS
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Heard at Field House by Skype |
Decision & Reasons Promulgated |
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On 6 November 2020 |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
EKTA PATEL
(ANONYMITY ORDER NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr P Saini, Counsel, instructed by MTG Solicitors
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer
A. Historic injustice
(1) For the future, 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 involve a belated recognition by the United Kingdom government that a particular class of persons was wrongly treated, in immigration terms, in the past; and that this injustice should be recognised in dealing with applications made now (eg Patel and Others v Entry Clearance Officer (Mumbai) [2010] EWCA Civ 17; AP (India) v Secretary of State for the Home Department [2015] EWCA Civ 89).
(2) The fact that the injustice exists will be uncontroversial. It will be generally recognised. It will apply to a particular class of persons. Unlike cases of what might be described as “historical injustice”, the operation of historic injustice will 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 are likely to be profound, even determinative of success, provided that there is nothing materially adverse in their immigration history.
B. Historical injustice
(3) Cases that may be described as involving “historical injustice” are where the individual has suffered as a result of the wrongful operation (or non-operation) by the Secretary of State of her immigration functions. Examples are where the Secretary of State has failed to give an individual the benefit of a relevant immigration policy (eg AA (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 12); where delay in reaching decisions is the result of a dysfunctional system (eg EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41); or where the Secretary of State forms a view about an individual’s activities or behaviour, which leads to an adverse immigration decision; but where her view turns out to be mistaken (eg Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009). Each of these failings may have an effect on an individual’s Article 8 ECHR case; but the ways in which this may happen differ from the true “historic injustice” category.
C. Part 5A of the Nationality, Immigration and Asylum Act 2002 and the weight to be given to the maintenance of effective immigration controls
(4) In all cases where, for whatever reason, the public interest in the maintenance of effective immigration controls falls 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) of the 2002 Act. The same result may 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 is in the United Kingdom unlawfully. Judicial fact-finders should, however, avoid any recourse to double-counting, whereby not only is the weight to be given to effective immigration controls diminished but also, for the same reason, a private life is given more weight than would otherwise be possible by the undiluted application of section 117B(4).
(5) The weight to be given to the public interest in the maintenance of effective immigration controls is unlikely to be reduced because of disappointments or inadequacies encountered by individuals from teaching institutions or employers.
DECISION AND REASONS
A. INTRODUCTION
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“Historic ● adj. 1. Famous or important in history, or potentially so. → archaic of the past. 2. Grammar (of a tense) used in the narration of past events, especially Latin and Greek imperfect and pluperfect.
Historical ● adj. of or concerning history → belonging to or set in the past. → (of the study of a subject) based on an analysis of its development over a period.
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Injustice ● n. 1. Lack of justice. 2. An unjust act or occurrence.”
Concise Oxford English Dictionary (10th edition, revised)
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The appellant, a citizen of India born in 1988, contends that she has suffered a historic injustice and that this should play a material part in the assessment of whether her removal from the United Kingdom would constitute a disproportionate interference with her Article 8 ECHR rights, consequent upon the refusal by the respondent of her human rights claim. The appellant says that the First-tier Tribunal committed an error of law in failing to identify and give effect to this matter, when it dismissed her appeal against that refusal.
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The appellant first entered the United Kingdom in October 2010, with entry clearance as a Tier 4 (General) Student. In February 2012, one day before the expiry of her leave in that capacity, the appellant applied for leave to remain as a Tier 1 (Highly Skilled Post-Study) Migrant. Her application was successful. She was granted leave in that capacity until 28 May 2014.
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On 25 June 2014, the appellant applied for leave to remain outside the Immigration Rules. Her application was refused on 28 August 2014. The appellant challenged that refusal by means of judicial review. On 9 November 2016, a judicial review application was dismissed on the basis that the matter had, by then, become academic. The reason was that the appellant wished to be able to remain in the United Kingdom for the purposes of conducting proceedings against her former employer in the Employment Tribunal. Those proceedings had in fact been concluded in January 2015. We shall have more to say about them in Part G below.
B. THE APPELLANT’S HUMAN RIGHTS CLAIM AND ITS REFUSAL
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On 18 April 2018, the appellant made a new application for leave to remain, together with a human rights claim. On 31 January 2019, the respondent refused the application/claim. The appellant no longer seeks to rely upon so much of her claim as related to her relationship with a person in the United Kingdom. As a result, the appellant’s case rests upon her Article 8 ECHR right to respect for her private life.
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In determining the private life aspect, the respondent applied paragraph 276ADE of the Immigration Rules. This provides as follows:-
“Requirements to be met by an applicant for leave to remain on the grounds of private life
276ADE (1). 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 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; 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) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.”
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At the date of decision, the appellant had lived in the United Kingdom for seven years and six months. She therefore could not meet the requirement to have lived continuously in the United Kingdom for at least 20 years. This meant she failed to meet the requirements of paragraph 276ADE(1)(iii).
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Given that the appellant was over the age of 18, she failed to meet the requirements of paragraph 276ADE(1)(iv). Not being between the ages of 18 and 25, she also failed to meet the requirements of paragraph 276ADE(1)(v).
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Consideration therefore moved to paragraph 276ADE(1)(vi). The respondent did not accept that there would be very significant obstacles to the appellant’s integration into India. The appellant stated in her application that she spoke English, Hindi and Gujarati, all of which were widely spoken in India. The respondent considered that this linguistic ability “will help you to adapt to life in India, socially and culturally”.
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The respondent also noted the appellant had stated in her application form that her parents and siblings remained in India. She had provided no evidence...
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