Upper Tribunal (Immigration and asylum chamber), 2023-07-03, [2023] UKUT 00165 (IAC) (Ahmed (historical injustice explained))
| Judge | The Hon. Mr Justice Dove, President, Upper Tribunal Judge Sheridan |
| Status | Reported |
| Date | 03 July 2023 |
| Published date | 19 July 2023 |
| Hearing Date | 26 May 2023 |
| Appeal Number | [2023] UKUT 00165 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | historical injustice explained |
UT Neutral citation number [2023] UKUT 00165 (IAC)
Ahmed (historical injustice explained)
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Heard at Field House
THE IMMIGRATION ACTS
Heard on 26 May 2023
Promulgated on 3 July 2023
Before
THE HONOURABLE MR JUSTICE DOVE, PRESIDENT
UPPER TRIBUNAL JUDGE SHERIDAN
Between
Md Imtiaz Ahmed
(NO ANONYMITY DIRECTION MADE)
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr. Malik KC, instructed by Londonium Solicitors
For the Respondent: Ms. Ahmed, Senior Home Office Presenting Officer
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As is clear from the decision in Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351(IAC), the phrase “historical injustice” does not connote some specific separate or freestanding legal doctrine but is rather simply a means of describing where, in some specific circumstances, the events of the past in relation to a particular individual’s immigration history may need to be taken into account in weighing the public interest when striking the proportionality balance in an Article 8 case. In relation to the striking of the proportionality balance in cases of this kind we make the following general observations:
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If an appellant is unable to establish that there has been a wrongful operation by the respondent of her immigration functions there will not have been any historical injustice, as that term is used in Patel, justifying a reduction in the weight given to the public interest identified in section 117B(1) of the Nationality, Immigration and Asylum Act 2002. Although the possibility cannot be ruled out, an action (or omission) by the respondent falling short of a public law error is unlikely to constitute a wrongful operation by the respondent of her immigration functions.
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Where the respondent makes a decision that is in accordance with case law that is subsequently overturned there will not have been a wrongful operation by the respondent of her immigration functions if the decision is consistent with the case law at the time the decision was made.
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In order to establish that there has been a historical injustice, it is not sufficient to identify a wrongful operation by the respondent of her immigration functions. An appellant must also show that he or she suffered as a result. An appellant will not have suffered as a result of wrongly being denied a right of appeal if he or she is unable to establish that there would have been an arguable prospect of succeeding in the appeal.
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Where, absent good reason, an appellant could have challenged a public law error earlier or could have taken, but did not take, steps to mitigate the claimed prejudice, this will need to be taken into account when considering whether, and if so to what extent, the weight attached to public interest in the maintenance of effective immigration controls should be reduced. Blaming a legal advisor will not normally assist an appellant. See Mansur (immigration adviser's failings: Article 8) Bangladesh [2018] UKUT 274 (IAC).
DECISION AND REASONS
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The appellant is a citizen of Bangladesh who came to the UK as a student in August 2008. After several extensions, his leave to remain expired on 19 March 2016. He then remained in the UK without leave.
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The appellant claims that removing him from the UK would breach article 8 ECHR. Amongst other things, he contends that the public interest in effective immigration controls is substantially reduced in his case because he suffered an injustice on 15 September 2016, when an application he made on 17 March 2016 under the Immigration (EEA) Regulations 2006 (“the EEA Regulations”) for a residence card as an extended family member of an EEA national was refused without affording him an opportunity to appeal that decision to the First-tier Tribunal.
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This argument was rejected by Judge of the First-tier Tribunal Peer (“the judge”) who, in a decision dated 3 October 2022, dismissed the appellant’s appeal that had been brought under section 82(1)(b) of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”). The appellant is now appealing against the judge’s decision.
Background
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After entering the UK as a student in August 2008 with leave until 30 September 2009, the appellant applied successfully to extend his leave on several occasions. His last period of leave, which was as a Tier 4 General student, was between 28 November 2013 and 19 March 2016.
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On 17 March 2016 the appellant submitted an application for a residence card under the EEA Regulations, claiming to be an extended family member of an EEA national. In a decision dated 15 September 2016 (“the 2016 decision”) the respondent rejected the application for multiple reasons. It was not accepted that the appellant was related as claimed to the EEA national, that he was dependent on the EEA national, or that the EEA national was a ‘qualified person’ . The respondent stated the following in respect of whether the appellant could appeal against the 2016 decision:
“You do not have a right of appeal against this decision. Appeals under the EEA regulations can only be made against an EEA decision. An EEA decision does not include a refusal to issue a residence card/a registration certificate/an EEA permit to an extended family member. This position is in line with the Upper Tribunal’s judgment in Shemsi Sala v the Secretary of State for the Home Department (IA/44409/2013)”
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Despite being informed that he had no right of appeal, on 7 October 2016 the appellant lodged an appeal in the First-tier Tribunal against the 2016 decision. On 8 December 2016 his appeal was dismissed for want of jurisdiction on the basis that it had been held in Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC); [2017] Imm AR 141 that there is no right of appeal against a decision by the respondent to not issue an extended family member a residence card.
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The appellant then (on 19 December 2016) commenced judicial review proceedings in the Upper Tribunal. The appellant’s application challenged the rationality of deciding he was not an extended family member, not the failure to acknowledge that he had a right of appeal. On 23 March 2017 permission was refused on the papers and on 17 May 2017 permission was refused following an oral hearing. The appellant then appealed to the Court of Appeal.
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In November 2017, whilst the appellant’s appeal in the Court of Appeal was pending, Sala was overturned by the Court of Appeal in Khan v Secretary of State for the Home Department & Anor [2017] EWCA Civ 1755; [2018] Imm AR 440. Khan made clear that extended family members have a right of appeal to the First-tier Tribunal.
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On 17 April 2018, the appellant was refused permission to appeal by the Court of Appeal. There is no reference in the refusal decision to Sala being overturned several months earlier. When refusing permission, Sharp LJ stated:
“The applicant failed to substantiate his claim to be a dependent relative of an EEA national by failing to submit evidence. Furthermore his immigration history was inconsistent with his claim to be a dependent relative…In the absence of any ground with any prospect of success, or any other compelling reason why the claim should be heard, permission to appeal is refused”
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On 18 April 2018 the appellant applied for asylum. His application was refused and subsequent appeal dismissed.
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He then submitted (on 13 June 2019) an application for leave on the basis of 10 years continuous lawful residence. This application was refused on 18 July 2019 with no right of appeal. The respondent agreed to reconsider her decision, and on 11 May 2021 the respondent made a further decision refusing the appellant’s application, but this time with a right of appeal.
Decision of the First-tier Tribunal
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As recorded in paragraph 41 of the decision, the issues in contention before the First-tier Tribunal were relatively narrow. The appellant did not contend that he could satisfy the Immigration Rules, either on the basis of 10 years continuous residence under paragraph 276B or on the basis of his private life under paragraph 276ADE(1). He also did not claim that he would face a risk of harm on return to Bangladesh. The focus of his argument was on the public interest in effective immigration controls, which he contended ought not to weigh significantly (or at all) against him. There were two strands to this argument.
The first strand was that although the appellant did not fall within paragraph 276B of the Immigration Rules, there was not a good reason to treat him differently to a person who did. The appellant argued that his application for a residence card, which was made before the expiry of his leave under the Immigration Rules, remains outstanding because the 2016 decision failed to include information about his appeal rights as required by the Immigration (Notices) Regulations 2003 (“the Notices Regulations”) and therefore was invalid. He submitted that if his application had been made under the Immigration Rules he would have accrued 10 years of lawful...
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