In Birch (Precariousness and mistake; new matters : Jamaica) [2020] UKUT 86 (IAC) the Upper Tribunal looks at the “precarious leave” provisions where a person wrongly believed that they had indefinite leave to remain.

It also identifies a loophole – a term not used without hesitation, but it is difficult to see the legislative intention for the difference – which allows appellants to introduce “new matters” in appeals before the Upper Tribunal where this would not otherwise have been possible before the First-tier.

Precarious leave in human rights cases

Where a person is relying on family or private life rights in an immigration case, the general rule is that those rights will carry less weight if the person’s immigration status was “precarious” at the time the private or family life was being developed.

This is now set out in primary legislation at section 117B(5) of the Nationality, Immigration and Asylum Act 2002, among a list of factors to which judges must have regard in immigration appeals.

What does “precarious” mean? Anything less than settled status, or indefinite leave to remain. So held the Supreme Court in Rhuppiah v SSHD [2018] UKSC 58.

Relationships created and life lived whilst a person is temporarily in the UK should therefore be accorded less significance in the context of a human rights claim than if they had no limit on their leave to remain.

But what if a person thinks they have indefinite leave to remain, but in fact hold a lesser more impermanent form of leave?

This was also addressed by the Supreme Court in the case of Agyarko v SSHD [2017] UKSC 11, which held that in cases of “reasonable misapprehension” a more relaxed approach might be needed.

In other words, if a person reasonably thought that they were in the UK with indefinite leave to remain and developed private life and family relationships during this time, the significance of these relationships should not be automatically discounted.

Look a gift horse in the mouth

Which takes us to the Birch case. Ms Birch arrived in the UK as a visitor in January 2000. She overstayed. In 2007 or 2008 she was introduced to someone posing as an Immigration Officer who offered, for a fee, to regularise her status.

Having parted with £3,000, Ms Birch received a stamp in her passport purporting to grant indefinite leave to remain, and a letter confirming as much.

Despite the fact that the Home Office knew nothing about any such grant, Ms Birch genuinely believed that she was entitled to remain indefinitely in the UK as a result of this transaction. Importantly, the Home Office accepted in later proceedings that her belief was genuinely held.

It was during this time that Ms. Birch developed her family and private life ties in the UK, and only in 2015 when applying for a driving licence that she discovered that the purported grant of indefinite leave to remain was no such thing.

She made an application to regularise her stay. This was refused. In her unsuccessful First-tier Tribunal appeal, the judge looked at the weight to be accorded to the strength of her family and private life, but held simply that:

It remains the case that the appellant had no valid leave to remain from 2001.

The appeal arrived in the Upper Tribunal for disposal by President Lane and Vice President Ockleton sitting together. They decided:

The [First Tier Tribunal] Judge should have treated the period during which the appellant thought she had leave differently from the periods in which she knew she had no leave. Given the extent of the former, and the relationships and the conduct of her private life during it, it is impossible to say that the result in general, and in the application of s 117B, would or should have been the same if this factor had been taken into account. The Judge’s decision must be set aside

When it came to remaking the decision, however, there had been a “significant development”: Ms Birch had by now been in the UK for just over 20 years.

“New matters” at the Upper Tribunal

A person who has been physically present in the UK for over 20 years is usually entitled on application to a grant of leave under paragraph 276ADE of the Immigration Rules.

The position of the Home Office was that this could not be considered by the Upper Tribunal unless the Secretary of State gave her consent (which she was apparently not prepared to do).

This submission was based on section 85 of the Nationality, Immigration and Asylum Act 2002:

(4) On an appeal under section 82(1) against a decision the Tribunal may consider any matter which it thinks relevant to the substance of the decision, including a matter arising after the date of the decision.

(5) But the Tribunal must not consider a new matter unless the Secretary of State has given the Tribunal consent to do so.

This stubbornness backfired. The heavyweight bench interpreted “tribunal” within the meaning of section 85 as referring only to the First-tier Tribunal, not the “superior court of record” of the Upper Tribunal.

This appears to mean that the restrictions imposed by section 85(5) do not apply where an appellant is before the Upper Tribunal, who may therefore introduce “new matters” without the consent of the Secretary of State.

Ms Birch’s appeal was consequently allowed. All being well, she should now been granted leave to remain by an actual Immigration Officer.