Someone correctly refused leave under the Immigration Rules as then in force is not the victim of a historical injustice, and therefore can’t rely on this as strengthening a subsequent Article 8 claim. So ruled the Court of Appeal in Rahaman & Another v Secretary of State for the Home Department [2022] EWCA Civ 310.

Background

The appellants – Mr Rahaman and Mrs Akter – were a married couple appealing against the refusal of their human rights claims to stay in the UK. By 2019, when the First-tier Tribunal heard their appeals, Mr Rahaman had lived in the UK for over ten years, but didn’t qualify for indefinite leave to remain on long residence grounds because he had overstayed since 2017. The overstaying followed the 2015 refusal of an application for leave in the Tier 1 (Entrepreneur) route.

At their human rights appeal hearing, the appellants’ barrister wished to argue that Mr Rahaman’s Entrepreneur application had been wrongly refused in 2015, and that but for this error he would now have completed ten years’ continuous lawful residence. That would make him entitled to ILR, and Mrs Akter to further leave as the spouse of a settled person. The argument was framed as one involving an “historic injustice” that should weigh in their favour in the Article 8(2) proportionality assessment.

The Entrepreneur application was refused because Mr Rahaman failed to submit certain documents required by the Immigration Rules, and because his business was not believed to be genuine. He attempted to rectify this by providing the relevant documents on appeal. But, at the time, section 85A of the Nationality, Immigration and Asylum Act 2002 prevented the tribunal in a Points Based System appeal from considering evidence that wasn’t submitted with the application. Mr Rahaman’s evidence therefore wasn’t taken into account, and the appeal failed.

In the 2019 human rights appeal, it was argued that as Mr Rahaman had been able to produce the missing documents, and as subsequent evidence showed that his business was indeed genuine, the 2015 refusal and subsequent dismissed appeal were erroneous. He and Mrs Akter should have been granted leave and were therefore the victims of an historic injustice.

No historic or historical injustice

In the Court of Appeal, the primary question was whether there had in fact been an injustice in 2015.

Lord Justice Lewis, who gave the only reasoned judgment, reiterated the distinction between “historic injustice” and “historical injustice” made in Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351 (IAC). Essentially, an historic injustice case is one where “there has been a belated recognition that a particular class of persons have been wrongly treated”. Then there is a “historical injustice”, where “an individual has suffered injustice as the result of the wrongful operation or non-operation by the respondent of her immigration functions”.

Mr Rahaman’s case, Lewis LJ said, clearly wasn’t an historic injustice because he didn’t fall into any recognised class of victims (such as British Overseas Citizens and Gurkha veterans, the examples given in Patel). 

Nor, Lewis LJ continued, was there an historical injustice. Far from operating her immigration functions wrongfully, the Secretary of State in 2015 had applied the Rules correctly. The Rules required Mr Rahaman to submit certain documents. He didn’t submit those documents, and his application was therefore rightly refused. It was irrelevant that he could have provided the missing material at the time or subsequently.

Similarly, the tribunal judge hearing the 2015 appeal acted entirely properly in refusing to consider the new evidence. The law at the time, in the form of section 85A, prohibited him from doing so:

On the law in force at the material time, the First-tier Tribunal could only look at the documents that were submitted to the respondent with the application. It could not look at documents provided later to the First-tier Tribunal. On the basis of the law in force at the time, it therefore dismissed the appeal. The first appellant had therefore been treated lawfully in accordance with the rules and the law in force at the material time. Put simply, there cannot be an historical injustice where a case has been decided in accordance with the law in force at the relevant time.

Mr Rahaman and Mrs Akter were not, therefore, able to rely on the circumstances of the 2015 refusal to enhance their Article 8 claim.

Comment

Undoubtedly, many people who have been refused leave to remain under the Points Based System will feel that they have suffered injustice. Over the years, the pre-2020 PBS gradually grew more and more prescriptive, making it easy for people to overlook the need for a particular document. Section 85A removed the option to produce the missing material on appeal, and the abolition of appeal rights altogether has only enhanced the scope for accidental and irremediable failure.

The courts have previously said that this harshness is a necessary consequence of “the perceived advantages of the PBS process”. The Court of Appeal in Rahaman has made it clear that a correct refusal under the law then in force, however apparently harsh, can’t enhance a future Article 8 claim.

It remains possible to rely on a past refusal as the basis of a historical injustice argument, but the focus must be on showing that the Secretary of State indisputably got it wrong – perhaps because a later case has shown that her understanding of the law was mistaken.