The President of the Upper Tribunal’s decision in OA and others (human rights; ‘new matter’; s.120) Nigeria [2019] UKUT 65 (IAC) has added another layer of complexity to an already biased and convoluted system. Readers are probably au fait with when the Secretary of State’s consent is required for an immigration judge to consider a “new matter” under section 85 of the Nationality, Immigration and Asylum Act 2002. If not, you can brush up on your knowledge here. Basically, as Colin put it, requiring the Home Office’s consent to argue a new matter is an unnecessary restriction reflecting the tribunal’s age-old tradition of saying “not my problem, mate”.

Let’s look at the headnote first so we can break it down:

Human rights appeals

(1) In a human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002, a finding that a person (P) satisfies the requirements of a particular immigration rule, so as to be entitled to leave to remain, means that (provided Article 8 of the ECHR is engaged), the Secretary of State will not be able to point to the importance of maintaining immigration controls as a factor weighing in favour of the Secretary of State in the proportionality balance, so far as that factor relates to the particular immigration rule that the judge has found to be satisfied.

(2) The fact that P completes ten years’ continuous lawful residence during the course of P’s human rights appeal will generally constitute a “new matter” within the meaning of section 85 of the 2002 Act. The completion of ten years’ residence will normally have a material bearing on the sole ground of appeal that can be advanced in a human rights appeal; namely, whether the decision of the Secretary of State to refuse P’s human rights claim is unlawful under section 6 of the Human Rights Act 1998. This is because paragraph 276B of the Immigration Rules provides that a person with such a period of residence is entitled to indefinite leave to remain in the United Kingdom, so long as the other requirements of that paragraph are met.

(3) Where the judge concludes that the ten years’ requirement is satisfied and there is nothing to indicate an application for indefinite leave to remain by P would be likely to be rejected by the Secretary of State, the judge should allow P’s human rights appeal, unless the judge is satisfied there is a discrete public interest factor which would still make P’s removal proportionate. Absent such factors, it would be disproportionate to remove P or require P to leave the United Kingdom before P is reasonably able to make an application for indefinite leave to remain.

(4) Leaving aside whether P has any other Article 8 argument to deploy (besides paragraph 276B) and in the absence of any policy to give successful human rights appellants a particular period of limited leave, all the Secretary of State is required to do in such a case is grant P a period of leave sufficient to enable P to make the application for indefinite leave to remain. If P subsequently fails to make such an application, P will continue to be subject to such limited leave as the Secretary of State has granted in consequence of the allowing of the human rights appeal.

Statements of additional grounds

(5) A statement of additional grounds for the purposes of section 120 of the 2002 Act must be made in writing.

(1) is uncontroversial. As judges grappled with the removal of a whole load of appeal rights in recent years, they eventually agreed that if the Immigration Rules were met then that would be determinative of the person’s case under Article 8.

See for example, paragraph 34 of TZ (Pakistan) and PG (India) [2018] EWCA Civ 1109 from the Court of Appeal and paragraph 27 of the present case. What we are essentially doing is arguing the third Razgar question and saying that because the Immigration Rules are met, any interference is not in accordance with the law.

(2) is semi-controversial. Whilst I agree that there is a general expectation that if a person meets the requirements of a particular rule, they are to be granted leave under those provisions, the long residence rule is slightly different. On a closer inspection of paragraph 276C, conveniently, the Secretary of State has built in some residual discretion such that indefinite leave to remain “may be granted” if the requirements of paragraph 276B are met.

Perhaps I am just reading too much into it but it doesn’t seem to me that a person has an unfettered entitlement to indefinite leave to remain if the requirements of paragraph 276B are met.

(3) is sensible and follows from the provisions of paragraph 276B(ii) which require consideration to be given to the “public interest” taking into account a variety of matters like an applicant’s age, strength of connections in the UK etc.

(4) is where I’m left confused. It describes the outcome of a successful human rights appeal against removal from the UK, relying on long residence as a new matter. The proposition is that the Secretary of State only needs to grant the successful appellant leave to remain for long enough for them to make the indefinite leave to remain application — rather than ILR just being granted by the judge.

I can’t understand why that should be the case. The most obvious route would be to simply grant leave under the provisions which the person has become eligible for. The Secretary of State, in considering the “new matter”, will already have made a decision about whether the person qualifies or not. What is the point of making the Home Office consider the evidence twice? That is simply putting it under more strain which no doubt they will be desperate to avoid in the lead-up to Brexit.