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Haleemudeen v Secretary of State for the Home Department


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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.


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.


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.

The Eve of the Battle of Edge Hill, 1642 (Charles Landseer, 1799 - 1879)
The Eve of the Battle of Edge Hill, 1642 (Charles Landseer, 1799 – 1879)

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.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


12 Responses

  1. Surely the commencement question now needs to go to the Supreme Court as we have two contradictory COA decisions? A third would not be all that helpful…

  2. I’ve just had a fresh decision on a JR which Home Office had withdrawn by way of consent order last year. Again they have refused leave to a family of 4 who have an undecided legacy case and have been here for 10 years. (Correspondence from both CRD and CAAU is in their papers, plus the family has 10 British relatives here too). The application on article 8, s 55 grounds was made validly on 27.4.2012; refused in June 1013 and now again in May 2014. Under Edgehill Appendix FM doesn’t apply to them at all. Just wasting loads of time and money, the Home Office. I agree that Beatson J is totally off target in Haleemudeen. Perhaps His Lordship should shift to the chancery bench man. I am so sick of this crap …

  3. The SSHD is equally confident that Jackson LJ ‘must be wrong’ in Edgehill, which is why I understand that it has been appealed to the Supreme Court. In the meantime, you cite Edgehill, we’ll cite Haleemudeen, and the Judges can pick their favourite.

  4. Provincial PO, maybe your industrious officials can start making decisions on some of your outstanding cases which have been in the queue for > 5 years: are you planning on applying your new rules to them? Are you waiting for what the Supreme Court will say? What are you charging fees for? Just to sit on your behinds, getting paid out of tax money paid by hard working immigrants. The “output” of the Home Department is so poor it is unreal. You’re comparable to the Pakistan Railways: the difference is that some of their trains do depart on time.

    1. Leave him alone! He’s right, in that the higher courts will ultimately decide and we don’t know the outcome. My bet is on Edgehill being correct and the Court of Appeal deciding the issue in another judgment. Doesn’t seem important enough for the Supreme Court to have to decide it.

  5. If SSHD has appealed it there’s a chance the Lords will grant permission, surely- especially now it clashes with Haleemudden

    Meanwhile, I would be delighted for the Home Office to cite Haleemuden in their arguments, since it clearly goes against Gulshan and restores the “outside the rules” possibility!

  6. Do you see this ending up like Patel? Hopefully the result will be better. Just looking through the UKSC PTA, they grant PTA to 1 or 2 cases out of 10 if that … A hard lot to please

    1. I wonder how many people this affects: how many pre-July 2012 applications are still int he system? (Not all Legacy cases have active applications pending- but not all pre-July 2012 cases are Legacy). My guess is thousands rather than tens of thousands. So yes, in the scheme of things maybe not worth the Supreme Court’s time. Of course, we wouldn’t want the Supreme Court to grant permission in every case.

      Hmm. Per Edgehill, can someone get ILR under the 14 year rule if they made an application pre-July 2012 which is still pending and have now been here for 14 years? I’m guessing only if the original application was for ILR… and varying it would bring the new rules into play.

    2. Even if there are thousands, rather than tens of thousands, that is still quite significant. I only mentioned UKSC as learned HO officer said above that Edgehill has been appealed to that court. I thought that I’d never have to argue that the old rules apply after July 2012 as initially the courts were quite open to the 2 stage approach as regards article 8 but unfortunately they no longer are :-( I agree that PTA should not be granted in every case. Anyway, interesting times ahead in immigration law. Hopefully, some poor foreign people will be granted leave. Otherwise, perhaps exceptional circumstances will rescue some people and others will have to go home and find new lives there after long years in the UK.