The Upper Tribunal has provided further guidance on the meaning of historical injustice in the case of Ahmed v SSHD [2023] UKUT 00165 (IAC). “Historical injustice” is the term used to describe the circumstances where an individual has suffered as a result of the wrongful operation (or non-operation) by the Secretary of State of her immigration functions.

The term has already been the subject of fairly extensive discussion in recent years, first in the case of Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351(IAC) which provided initial guidance on the term, and more recently in the Court of Appeal in the case of Rahaman v SSHD [2022] EWCA Civ 310 (see previous Free Movement articles here and here respectively). Ronald Reagan famously said that “if you’re explaining, you’re losing.” It seems that further clarification has been required to explain how historical injustice ought to be considered.

Background

The Appellant, Mr. Ahmed, brought his appeal on the basis that his removal from the UK would breach his rights under Article 8 of the European Convention on Human Rights. He had arrived in the UK as a student in 2008, however, he had become an overstayer after his leave expired on 19 March 2016. The maintenance of effective immigration controls was therefore a public interest consideration weighing against his appeal under s.117B(1) of the Nationality, Immigration and Asylum Act 2002.

However, Mr. Ahmed argued as part of his appeal that the weight to be given to this factor was substantially reduced due to an historical injustice he had suffered.

The “historical injustice”

The historical injustice was said to have occurred in September 2016. Mr. Ahmed had applied on 17 March 2016 (i.e. two days prior to his leave expiring) for a residence card under the Immigration (European Economic Area) Regulations 2006, on the basis that he was an extended family member of an EEA national. The Respondent rejected the application on 15 September 2016, and did not give the Appellant a right of appeal, in line with the relevant case law at the time. In Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC) the Upper Tribunal (wrongly) held that extended family members did not have a right of appeal to the first-tier tribunal.

The Appellant was unsuccessful in his appeal against this refusal. By the time the Appellant’s challenge had reached the Court of Appeal, the case of Sala had been overturned. However, the Court of Appeal made no mention of this development in its refusal of permission to appeal to Mr Ahmed.

After an unsuccessful asylum claim, Mr Ahmed then made an application for leave to remain on the basis of 10 years’ continuous lawful residence. His subsequent appeal in the first-tier tribunal focused in part on the “historical injustice” of having been deprived of the opportunity to appeal the refusal of his application for a residence card in 2016. He argued that as a result of this historical injustice, limited or no weight ought to be given to the public interest in effective immigration controls.

Upper Tribunal’s decision

The Upper Tribunal dismissed the appeal. The Upper Tribunal commences its analysis of the case by reviewing the key principles in Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351(IAC), and the guidance therein regarding the meaning of historical injustice, i.e. where the individual has suffered as a result of the wrongful operation (or non-operation) by the Secretary of State of her immigration functions.

In respect of Mr. Ahmed’s appeal, the Upper Tribunal found that there was no historical injustice in this instance, because the appellant had failed to show (a) that there was a wrongful operation by the secretary of state of her immigration functions and (b) that he had suffered as a result of that wrongful operation.

The refusal in 2016 could not be considered as a ‘wrongful operation’ of immigration functions because the Secretary of state had acted consistently with the state of law as it was then understood. Even if this was incorrect, the appellant did not have an arguable prospect of success in any appeal against the refusal in 2016. He therefore had not ‘suffered’ as a result of being deprived of the right to appeal.

Comment

Whilst the Upper Tribunal’s observations are broadly a reiteration of the principles set out in Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351 (IAC), the Upper Tribunal is emphatic that there is no special consideration to be given to an appeal concerning historical injustice. “Historical injustice” does not provide a free-standing legal doctrine or principle upon which appellants can expect to succeed. Rather the assessment of cases involving historical injustice ought to be approached on a case-by-case basis. This is not surprising (and would surely have been the approach to be expected) since the facts of each individual case are central to the proportionality assessment under Article 8.

Appellants and their representatives will need to be careful to ensure that any appeals brought on this basis can establish a “historical injustice” as per the definition in Patel (wrongful operation of immigration function + suffering as a result), whilst also bearing in mind that the focus will remain on the proportionality assessment.

Finally, we leave you with the official headnote:

1. As is clear from the decision, 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:

a. 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.

b. 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.

c. 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.

d. 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).

(ed: why in the name of all that is holy would anyone use a numbered list with only one number in it?)