UPDATE:

Haleemudeen on remittal to UT: SoS conceded Edgehill applied, no need for deference to post-July 2012 and found disproportionate on Art 8

— Mansfield Chambers (@MansfieldImm) June 20, 2014

The facts of Haleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558 reveal another of those “undesirable” migrants the Home Office is so keen to remove:

Mr Haleemudeen is the Assistant Manager of a Tesco Express store in Whitechapel. His wife is a part-time student and hopes to become a nursery school teacher. The couple have made many good friends in this country and Mr Haleemudeen undertakes charity work for the Sri Lankan Muslim community of east London. One of the children has been here since she was 21 months old and the other was born in this country. They are settled in school and have friends. The eldest daughter, who is being treated for asthma, is doing well at school.

On top of that, Mr Haleemudeen’s wife was accepted to be “an asset to her community” and it was accepted that all the children had ever known was their life with their parents in the United Kingdom and that neither child spoke good Tamil.

Having lived in the UK continuously and since 2001, Mr Haleemudeen applied for settlement on the basis of his 10 years of residence. His application was refused because of a 23 day period of overstay when a (successful) application was submitted slightly late when he was ill, a further gap when he was out of the UK on a visit to Sri Lanka and also because in 2010 he had pleaded guilty to driving without insurance and without a licence and was fined £245. The offence, although not a serious one, was not spent and an automatic mandatory refusal was therefore unthinkingly imposed by the Home Office. Mandatory refusals on this ground were later abolished, but too late for Mr Haleemudeen, who had to fight his case on the basis of the rules then in force.

He failed under the Immigration Rules, as was inevitable, but at the First-tier Tribunal he succeeded under Article 8 of the European Convention on Human Rights. The Home Office appealed and the decision was overturned by the Upper Tribunal and Mr Haleemudeen’s case dismissed. Unusually, a judge of the Upper Tribunal granted Mr Haleemudeen permission to appeal to the Court of Appeal on the even more unusual basis that there had been nothing wrong with the decision of the FTT in the first place, calling to mind the old Oleed line of litigation.

Held

The Court of Appeal held that the FTT had given perfectly adequate reasons for the appeal allowing under Article 8 but, perhaps rather surprisingly given that finding, went on to hold that the decision was nevertheless marred by error of law because the judge:

…did not consider Mr. Haleemudeen’s case for remaining in the United Kingdom on the basis of his private and family life against the Secretary of State’s policy as contained in Appendix FM and Rule 276ADE of the Immigration Rules. These new provisions in the Immigration Rules are a central part of the legislative and policy context in which the interests of immigration control are balanced against the interests and rights of people who have come to this country and wish to settle in it. Overall the Secretary of State’s policy as to when an interference with an Article 8 right will be regarded as disproportionate is more particularised in the new Rules than it had previously been. The new Rules require stronger bonds with the United Kingdom before leave will be given under them. The features of the policy contained in the Rules include the requirements of twenty year residence, that the applicant’s partner be a British citizen in the United Kingdom, settled here, or here with leave as a refugee or humanitarian protection, and that where the basis of the application rests on the applicant’s children that they have been residents for seven years.

Beatson J then goes on to look again at the paragraphs in the FTT determination dealing with Article 8 and finds:

Those paragraphs do not refer, either expressly or implicitly, to paragraph 276ADE of the rules or to Appendix FM. None of the new more particularised features of the policy are identified or even referred to in general terms. The only reference to the provisions is in the FTT’s summary (at [30]) of Mr. Richardson’s submission that the reference to the new Rules in the refusal letter was of little relevance because at the time of Mr. Haleemudeen’s application those Rules had not been promulgated and thus did not apply to his case. That submission could not succeed in view of the decision of the House of Lords in Odelola‘s case, to which I refer at [25] above.

This last finding — that the new post application rules applied — is directly contrary to the ratio of the judgment in Edgehill & Anor v Secretary of State for the Home Department [2014] EWCA Civ 402, considered on Free Movement here.

Although the FTT had erred, so had the Upper Tribunal: the period of residence had been miscalculated. Beatson J accepted Counsel’s submission that this was a matter of significance, even though the Appellant and his family still fell a long way short of the length of residence required by paragraph 276ADE.

Comment

It is not often one is able to say this definitively of a judgment, but in my opinion Beatson J must be wrong on the question of the commencement of the new human rights rules in respect of outstanding applications, at least in his reasons. He clearly relies on Odelola [2009] UKHL 25 (briefly and in hindsight rather incompletely considered here on Free Movement) for so finding, but does not seem to appreciate that Odelola involved a change to the Immigration Rules with no transitional provisions. It was only in the absence of transitional provisions that the unfair but legal effect of Odelola bites and an application made under one set of rules is considered under another.

That mistake is not made by the Court of Appeal in Edgehill, which is based on a careful reading of the applicable transitional provisions and which is surely therefore to be preferred. However, this does mean the commencement question will need to go again to the Court of Appeal.

Paul Richardson was Counsel for the Appellant instructed by Kothala and Co Solicitors and Jonathan Hall QC (his new silkdom is well deserved in my view) was Counsel for the Secretary of State instructed by Treasury Solicitors.