Court of Appeal concludes Upper Tribunal conducted an unfair paper determination of an error of law appeal and endorses Upper Tribunal decision of EP(Albania)

In Hussain & Anor v Secretary of State for the Home Department [2022] EWCA Civ 145 (11 February 2022), the Appellants, Hamid Hussain and GA, were granted permission to appeal on the papers by  the Court of Appeal, with that Court noting,  “….the appeals raised issues relating to: the guidance note; the decision in JCWI v President of UTIAC; and the decision in EP(Albania). These issues had been raised in a considerable number of other applications for permission to appeal to the Court of Appeal …”

In both appeals in Hussain, on deciding the appeals on the papers following the grant of permission to appeal from the FTT, different Upper Tribunal Judges at different periods in time in 2020, dismissed the appeals on paper without having been provided by the Upper Tribunal itself with the Appellants’ respective submissions dated 2 April 2020 and 23 July 2020, in which they requested oral hearings.

In essence, the issue in the appeals was whether the Upper Tribunal’s paper determination of the Appellants’ appeals from the First Tier Tribunal satisfied the requirements of common law fairness.

The Court of Appeal’s overall conclusion at paragraph 71 of its judgement in Hussain was:

“For the detailed reasons set out above: (1) UTIAC could, after the guidance note had been issued on 23 March 2020, determine an error of law appeal from the FTT on the papers, so long as it was fair to do so. Therefore the critical issue on any appeal, or application for permission to appeal, will be whether such a paper determination by UTIAC of the appeal from the FTT satisfied the common law requirements of fairness. The UT was, therefore, right in EP(Albania) to reject the submission that, as a result of the judgment in JCWI v President of UTIAC, all determinations on paper made by UTIAC after the guidance note had been produced, should be set aside; (2) the paper determination by UTIAC of Mr Hussain’s appeal from the FTT did not satisfy the requirements of common law fairness because his submissions dated 2 April 2020 were overlooked; and (3) the paper determination by UTIAC of GA’s appeal did not satisfy the requirements of common law fairness because his submissions dated 23 July 2020 were overlooked and because the UT Judge did not give GA an opportunity to address the UT’s concerns about whether the Country Guidance in MB CG should be followed”.

Applicable Upper Tribunal Rules:

Rules 34 and 43 of the Upper Tribunal Rules were in issue:

Rule 34 of the Upper Tribunal Rules provides:

“34.— Decision with or without a hearing

(1) Subject to paragraphs (2) and (3), the Upper Tribunal may make any decision without a hearing.

(2) The Upper Tribunal must have regard to any view expressed by a party when deciding whether to hold a hearing to consider any matter, and the form of any such hearing.

(3) In immigration judicial review proceedings, the Upper Tribunal must hold a hearing before making a decision which disposes of proceedings.

(4) …”

Rule 43 of the Upper Tribunal Rules states:

“43.— Setting aside a decision which disposes of proceedings

(1) The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if— (a) the Upper Tribunal considers that it is in the interests of justice to do so; and (b) one or more of the conditions in paragraph (2) are satisfied.

(2) The conditions are— (a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative; (b) a document relating to the proceedings was not sent to the Upper Tribunal at an appropriate time; (c) a party, or a party’s representative, was not present at a hearing related to the proceedings; or (d) there has been some other procedural irregularity in the proceedings.

(3) …”

Relevant Guidance:

As summarised in Hussain by way of background, the President of UTIAC issued Guidance Note on 23 March 2020 at the beginning of the COVID-19 pandemic.

The guidance note had been issued after the Senior President of Tribunals (“the SPT”) had issued a Pilot Practice Direction on 19 March 2020, which included, at paragraph 4:

“Decisions on the papers without a hearing “Where a Chamber’s procedure rules allow decisions to be made without a hearing, decisions should usually be made in this way, provided this is in accordance with the overriding objective, the parties’ ECHR rights and the Chamber’s procedure rules about notice and consent”.

As per Hussain {28}, material provisions of the guidance note are set out in paragraphs 3.9 and 3.10 of the judgment in  Joint Council for the Welfare of Immigrants v President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin)[2021] PTSR 800 (“JCWI v President of UTIAC”).

Hussain also summarised{3} that paragraphs 9 to 17 of the guidance note had subsequently been held to be unlawful by the High Court in  JCWI v President of UTIAC by decision  made on 20 November 2020. In that case it was held that guidance in the guidance note was unlawful because, objectively interpreted, it gave advice which was wrong in law and which would tend to encourage unlawful decisions about when to determine appeals on paper.  This was because the guidance note did not make it sufficiently clear that any decision to determine an error of law appeal without a hearing had to be consistent with principles of fairness.

In Hussain, the Court of appeal referred to EP(Albania) and others [2021] UKUT 233 (IAC), noting :

“6.  In EP(Albania) and others [2021] UKUT 233 (IAC) eighteen of these Rule 43 applications were heard by UTIAC (Swift J and UTJ Blundell) (“EP(Albania)”) on 10, 11 and 29 June 2021. The decision and reasons in EP(Albania) were promulgated on 2 September 2021 (although the date does not appear on the decision). The UT held that not all appeals which had been determined on the papers after the guidance note had been issued should be set aside. Each Rule 34 decision to have a paper determination was a reasoned decision and the merits of the Rule 43 applications must be determined on consideration of the reasons given in each case.

7.At paragraphs 67 to 69 of the judgment in EP(Albania) the Upper Tribunal concluded that there was “no single, one size fits all, answer to the Rule 43 applications”. The Upper Tribunal held that a decision to determine the appeal on the papers would be unlawful if there had been a failure to act fairly and there would be a need to consider whether the “reasons expressly or by inference point to a conclusion reached without consideration of the principles that make up the overriding objective, or without consideration of whether determination of the error of law appeal without a hearing would be consistent with the principles of fairness”. It was held that sixteen of the applications to set aside the paper determinations under Rule 43 should be refused. In two applications there had been specific errors in the decisions to have a paper determination which led to the setting aside of those determinations”.

Refined issues identified by the Court of Appeal and endorsement of EP(Albania) :

In relation to the issues that applied in Hamid Hussain and GA’s appeal, following some consideration, the Court of Appeal refined them as follows:

  • It was common ground that UTIAC could, after the guidance note had been issued on 23 March 2020, determine an error of law appeal from the FTT on the papers, so long as it was fair to do so. Therefore the critical issue for the Court of Appeal in the present appeals would be to decide whether such a paper determination by UTIAC of the appeal from the FTT satisfied the common law requirements of fairness.
  • It was sufficient for the purposes of the appeals to say only that what fairness requires will depend on the circumstances of the particular case.
  • It was also common ground between the parties that, if there had not been a fair determination of the appeal in UTIAC then, absent showing that the result of the appeal would inevitably have been the same, UTIAC’s determination should be set aside.
  • It was in these circumstances that it was clear that it would not be necessary for the Court in Hussain to determine the issue raised by the Secretary of State’s late amended Respondent’s Notice about whether the decision JCWI v The President of UTIAC was rightly decided. That particular issue could be determined, if necessary, in an appeal in which it arises.
  • The reason that it was not necessary to determine whether JCWI v The President of UTIAC was rightly decided was because that judgment was looking at a different issue, namely whether the objective interpretation of the guidance note communicated a usual position whereby UTIAC substantive appeals would be determined on the papers (which Fordham J. had called “an overall paper norm”) which would have been inconsistent with the proviso in paragraph 4 of the Practice Direction issued by the SPT on 20 March 2020, and common law fairness.
  • The position in the present appeals in Hussain was different. The Court was not looking at whether, objectively judged, the guidance note had the potential to mislead UT judges to make unfair, and therefore unlawful, determinations on paper. The issue before the Court was whether the paper determinations were in fact unfair.
  • For broadly similar reasons, the Upper Tribunal was right in EP(Albania)to reject the submission that, as a result of the judgment in JCWI v President of UTIAC, the determinations on paper made by UTIAC after the guidance note had been produced, should be set aside. This was because the question was whether it was fair to determine the matter on the papers.

What went wrong in Mr Hussain’s appeal in the Upper Tribunal?

As observed by the Court, it was clear that the issue in Mr Hussain’s appeal was whether there was a fair paper determination of his appeal generally and specifically because his written submissions dated 2 April 2020 were not considered, and because the UT Judge did not engage with a number of arguments as to why the FTT Judge had erred in law in making certain findings of fact.

The key sequence of events were as follows in Mr Hussain’s appeal:

  • Having applied for a residence card in 2018 as an extended family member of an EEA national (his uncle) pursuant to the Immigration (European Economic Area) Regulations 2016, the application was refused by the Secretary of State. On 26 September 2019, an FTT Judge dismissed the appeal as it was considered that none of the documents evidenced the financial dependency of Mr Hussain on the uncle when Mr Hussain was living in Pakistan.
  • After Mr Hussain applied for permission to appeal to the Upper Tribunal on the basis that the FTT Judge had erred in assessing the evidence of dependency in Pakistan, on 28 February 2020 the application for permission to appeal was granted by the First Tier Tribunal. This included the then standard directions for an oral hearing.
  • As a result of the developing COVID-19 pandemic, on 18 March 2020 the Vice President of UTIAC sent out written directions. He stated that he had reached a provisional view that it would be appropriate to determine the error of law and the decision whether to set aside the FTT decision without a hearing. He directed that any party who considered a hearing to be necessary should make written submissions.
  • The SPT’s Practice Direction was issued on 20 March 2020. The guidance note was issued on 23 March 2020. The Vice President’s direction in Mr Hussain’s appeal to the UT pre-dated the guidance note dated 23 March 2020.
  • Written submissions dated 2 April 2020 were filed on behalf of Mr Hussain and at paragraph 3 of these submissions it was stated: “The appellant submits that some form of hearing in the instant case is appropriate and is (at least arguably) necessary in order to provide the appellant with an effective hearing of this error of law appeal. In line with the said directions, the appellant may provide reasons in support of this proposition in a separate document which is to be filed by 9 April. He reserves the right to do so”.

Following further filing of written submission by the parties, on 1 May 2020 the Upper Tribunal Judge issued written directions and referred to the Vice President’s directions stating:

 ‘…What is clearly anticipated by such directions was that there will be a sequential opportunity for the parties to comment upon each other’s further observations. Despite that the first document to be received was that of 3 April 2020 from the Secretary of State. The first communication from the appellant was not received until 9 April 2020 which, rather than dealing with the specific terms of the Vice President’s direction, applied for an adjournment claiming the hearing should be stayed for a face-to-face hearing after the Covid 19 emergency had subsided relying upon the letter from ILPA dated 2 April 2020 which was annexed… There then followed further written submissions received on 16 April 2020 from the appellant described as being submissions in reply. Whilst these seek to respond to those provided by the Secretary of State’s representative they are the first detailed submissions made as to the making of an error of law and the failure to provide the same in the first submissions deprived the Secretary of State with the opportunity to respond to the same. This is procedurally unfair.’

The UT Judge then made directions providing for the Secretary of State to file and serve submissions if so advised. Mr Hussain’s solicitors emailed the Upper Tribunal on 12 May 2020 and 18 May 2020 to point out that submissions had in fact been lodged on 2 April 2020 in accordance with the directions. On 15 May 2020 the Secretary of State confirmed by email that she had received the submissions dated 2 April 2020.

On 27 May 2020 the UT Judge promulgated a written decision and reasons. The decision and reasons were headed in the top left On the papers, pursuant to COVID-19 UTIAC directions, on 18 May 2020″.  At paragraph 2 of the decision it was stated:

“Following the closure of Field House and adjournment of UTIAC hearings outside London a direction was sent to the parties on 20 March 2020 indicating a preliminary view that the error of law hearing was suitable for determination remotely and providing an opportunity for the parties to respond. A response was received but not in the terms anticipated by the directions. Accordingly further directions were issued and sent [to] the parties on 12 May 2020 a copy of which is set out at Annex A. On 14 May 2020, the respondents representative emailed UTIAC advising that the Secretary of State did not wish to file any further submissions.”

The UT Judge recorded that it was for the Upper Tribunal to determine what form of hearing should take place and that there was no right to face to face hearings enshrined in law but it was a protected concept that there should be fairness and the interests of justice in the manner in which a case was decided.

The UT Judge dismissed the appeal on the merits on the basis that the FTT Judge had considered all the relevant evidence and reached a permissible decision on the facts about Mr Hussain’s lack of dependency on his uncle.

At the end of the decision and reasons there was a stamp above the UT Judge’s name and the decision was dated “18 May 2020”. Immediately below that date was an annexe A. This annexe comprised the directions made by the UT Judge on 1 May 2020. This included the statement in those written directions by the UT Judge that although the Vice President’s directions contemplated submissions from the appellant to be filed first, “despite that the first document to be received was that of 3 April 2020 from the Secretary of State.”

Mr Hussain sought permission to appeal to the Court of Appeal, with Ground two of the grounds of appeal submitting that the Upper Tribunal had committed a procedural error by failing to consider correspondence from the parties identifying those submissions dated 2 April 2020 had been filed on behalf of Mr Hussain.

Why the Court of Appeal allowed Mr Hussain’s appeal:

In allowing, the appeal, the Court reasoned as follows:

  • It was clear that the UT Judge did not have Mr Hussain’s submissions dated 2 April 2020 before making the directions dated 1 May 2020. This is because those directions specifically recorded what submissions had been received, wrongly stated that the Secretary of State’s response was the first document received, and stated that the failure to file submissions first on behalf of Mr Hussain had been “procedurally unfair”.
  • It was unfortunate that Mr Hussain should have been blamed for a failing which had not taken place.
  • It was apparent that those then acting on behalf of both Mr Hussain and the Secretary of State attempted to draw the attention of the UT Judge to the submissions dated 2 April 2020 in emails to the UT. However it seemed clear that these could not have been received by the UT Judge before the paper determination of the appeal. This was because the decision expressly recorded at the outset that directions had been sent out and “a response was received but not in the terms anticipated by the directions”, which must have been a reference to what was (wrongly) considered to have been the failure on behalf of Mr Hussain to comply with the directions. This conclusion was supported by the fact that the directions dated 1 May 2020, in which it was expressly stated that what had been done on behalf of Mr Hussain was “procedurally unfair”, were annexed as part of the decision and reasons. There was nothing in the decision and reasons promulgated by the UT Judge to suggest that that comment had been recognised to have been mistaken.
  • It was clear that whatever was thought by the UT Judge when dealing with the application for permission to appeal, which application was determined on 8 September 2020, nearly four months after the decision and reasons dated 18 May 2020, the submissions dated 2 April 2020 were not taken into account by the UT Judge.
  • The fact that documents which had been filed on behalf of parties might not have been supplied to judges is not particularly surprising given the disruption caused to office systems during the pandemic, and particularly during the early phases of the pandemic.
  • The UT Judge had expressly stated that Mr Hussain’s failure to follow the direction was procedurally unfair. This would have been a perfectly proper conclusion if it had been accurate, but it was based on mistaken information and Mr Hussain would be entitled to feel a sense of grievance at having been wrongly accused of having been responsible for some procedural unfairness.

The Court of Appeal concluded that the determination of Mr Hussain’s appeal on the papers did not satisfy the requirement of common law fairness.

His appeal against the decision and reasons promulgated on 27 May 2020 was allowed and remitted to the UT.

What went wrong in GA’s case and why the Court of Appeal allowed his appeal:

In Hussain, the Court noted from early on in its judgement that so far as GA’s appeal was concerned, the Secretary of State accepted that there was an error of law in the proceedings before UTIAC and that GA’s appeal should be allowed. In brief, this was because the UT Judge did not appear to have given express consideration to whether it was fair to determine the appeal on the papers, and because the UT Judge did not appear to have been shown submissions by GA dated 23 July 2020 requesting an oral hearing.

The Court of Appeal concluded that UTIAC’s paper determination of GA’s appeal from the First Tier did not satisfy the requirements of common law fairness.

The Court allowed GA’s appeal against the decision and reasons promulgated on 2 September 2020 by the Upper Tribunal and remitted GA’s error of law appeal from the FTT to be determined by the Upper Tribunal, observing that the way in which the Upper Tribunal should determine the appeal was a matter for the Upper Tribunal to determine on a fair basis.

 

Akinsanya litigation: Court of Appeals decides Zambrano Primary Carers of British citizen children with limited leave are covered by the EEA Regulations

“The definition of “person with a Zambrano right to reside” is elaborate to the point of impenetrability…..”  said the Court in Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37 (25 January 2022).

It is difficult to disagree. The definition as drafted,  is to be read slowly and several times over until eventually its effect is fully grasped.

In Akinsanya 2, the Secretary of State contended before the Court of Appeal that the only issue before Mostyn J in Akinsanya, R (On the Application Of) v Secretary of State for the Home Department (Rev 3) [2021] EWHC 1535 (Admin) (09 June 2021), Akinsanya 1, was whether the Secretary of State had, in formulating the Annex 1 definition in Appendix EU, “erred … in her understanding of (a) the Zambrano jurisprudence and (b) regulation 16 of the 2016 Regulations” – ie, by proceeding on the basis that the Zambrano right did not arise in circumstances where the carer in question had any form of leave to enter or remain.

The Court of Appeal upheld Mostyn J’s decision by reference to the formulation of Regulation 16 of the 2016 Regulations, with the result that the Secretary of State lost her appeal.

Summary Background

The Claimant, a Nigerian national is a sole carer of a British citizen child born on 26 October 2011. She was granted a “derivative residence card” under the Immigration (European Economic Area) Regulations 2006, as amended, on 15 September 2014 on the basis that she was her son’s “Zambrano carer”.

On 4 April 2019 the Claimant applied for limited leave to remain under Appendix FM to the Immigration Rules, on the basis that she was the sole responsible parent of a British citizen child living in the UK (by reference to R-LTRPT, read with paragraph E-LTRPT.2 of Appendix FM). On 12 July 2019 the application was granted, for a thirty-month period expiring on 11 January 2022.

The reason why the Claimant chose to apply for leave to remain, rather than continuing to rely on her derivative residence right as a Zambrano carer, was that as a result of illness she was unable to work and needed to claim benefits. As a person with a derivative residence right she had only a limited entitlement to social assistance whereas once she had leave to remain she became entitled to claim mainstream benefits (the Secretary of State not having imposed a “no recourse to public funds” condition).

On 19 January 2020 the Claimant applied to the Secretary of State for indefinite leave to remain (“ILR”) under the EU Settlement Scheme (“the EUSS”). By letter from the Home Office dated 29 September 2020 her application was refused.

On 31 December 2020 the Claimant issued judicial review proceedings challenging the decision of 29 September 2020. On 9 June 2021 Mostyn J upheld her challenge.

The Secretary of State appealed to the Court of Appeal.

Appreciating the applicable law:

With reference to Appendix EU, the Claimant in Akinsanya, contended that she had at the material date “a Zambrano right to reside” and accordingly that she had completed the five-years continuous qualifying period.

In Akinsanya 2, the Court of Appeal confirmed that the issue in the appeal derived ultimately from the decision of the Grand Chamber of the Court of Justice of the European Union (“the CJEU”) in Ruiz Zambrano v Office National de l’Emploi, case no. C34/09, [2012] QB 265, which was promulgated on 8 March 2011.

Having referred to reasoning of the Court in Zambrano, the Court of Appeal clarified: “ It will be seen that the essence of that reasoning, as it applied in the actual case, is that unless the father enjoyed the right to live in Belgium, and the right to work, he would have to leave the EU, and the children would in practice have to go with him, and that that would deprive them of the substance of their rights as EU citizens under articles 20 and 21. Mr Blundell referred us to the judgment of Lady Arden (with which the other members of the Court agreed) in Patel v Secretary of State for the Home Department [2019] UKSC 59[2020] 1 WLR 228. At para. 22 she said: “What lies at the heart of the Zambrano jurisprudence is the requirement that the Union citizen would be compelled to leave Union territory if the TCN [third country national], with whom the Union citizen has a relationship of dependency, is removed.”He also referred us to para. 30, where Lady Arden observed that “[t]he test of compulsion is … a practical test to be applied to the actual facts and not to a theoretical set of facts”.{10}

The Court in Akinsanya 2, referred to circumstances where the removal of the third country national parent would in practice mean that the EU citizen child has to leave the EU as “the Zambrano circumstances”. As regards the rights which in those circumstances may not be refused to the parent (i.e. the right to reside and to work and, where necessary, to receive social assistance), these were referred to as “Zambrano rights”.

Annex 1 to Appendix EU contains the definition of “person with a Zambrano right to reside”. The EEA Regulations referred to in the Annex 1 definition are the Immigration (European Economic Area) Regulations 2016. As noted by the Court, the Regulations have ceased to have effect, save for certain transitional purposes, since 31 December 2020 (i.e. the end of the Brexit transition period).

Regulation 16(1) of the Regulations states a person has a derivative right to reside during any period in which the person (a) is not an exempt person; and (b)  satisfies each of the criteria in one or more of paragraphs (2) to (6).

**Limb (b) of the definition of the Annex 1 definition is that that applicant should be “without leave to enter or remain in the UK”; but the Claimant in Akinsanya had had such leave since 12 October 2019.

Regulation 16(5) deals with third country national carers of British citizen children, i.e. Zambrano carers. It states the criteria in this paragraph are that —

  • the person is the primary carer of a British citizen (‘BC’);
  • BC is residing in the United Kingdom; and
  • BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period.

Regulation 7 (1) (a)) provides an “exempt person” is a person:

  • who has a right to reside under another provision of the EEA Regulations;
  • who has the right of abode under section 2 of the 1971 Act;
  • to whom section 8 of the 1971 Act, or an order made under subsection (2) of that section, applies; or
  • who has indefinite leave to enter or remain in the United Kingdom (but see paragraph (7A)). In Akinsanya, the Court pointed that it should be noted that the persons are those with indefiniteleave to remain: it does not cover those with only limited leave.

Persons with a derivative right to reside under Regulation 16 are entitled by Regulation 20 to be issued with a “derivative residence card” either for five years or for such lesser period as the Secretary of State may prescribe.

Mostyn J’s June 2021 Judgement in Akinsanya 1

Mostyn J’s judgement was considered in a previous blog post here: Primary Carers of British citizens: The Akinsanya litigation and persons with a Zambrano right to reside – UK Immigration Justice Watch Blog

In Akinsanya 2, the Court noted that Mostyn J held that the Secretary of State had erred in her understanding both of the Zambrano jurisprudence and of Regulation 16.

At paragraph 36 of its judgment, the Court summarised Mostyn J’s conclusions:

“(1) He held that a Zambrano right in EU law was not extinguished by “the existence of a concurrent limited leave to remain”: see in particular para. 51 of his judgment.

(2) He further held that, even if the jurisprudence of the CJEU did not go that far, the domestic formulation of the Zambrano right in regulation 16 was quite clearly to the effect that the right conferred by paragraph (5) was only excluded where the carer enjoyed indefinite leave to remain, since paragraph (7) refers only to ILR: see in particular para. 70 of his judgment. He rejected an argument on behalf of the Secretary of State that the relevant provisions should be read down so as to confer rights that went no further than those accorded by EU law: see paras. 67-69.

On the same date he made an order quashing the decision of 29 September 2020 and two declarations. I need only set out the terms of the first, which read:

“The Secretary of State erred in law when providing, in Annex 1 to Appendix EU to the Statement of Changes to the Immigration Rules HC 395 as amended, that the definition of a ‘person with a Zambrano right to reside’ includes paragraph (b) ‘a person …. without leave to enter or remain in the UK, unless this was granted under this Appendix’.”

Secretary of State’s arguments:

  • It was submitted on behalf of the Secretary of State that the explicit rationale for the CJEU’s “creation” of Zambrano rights for third country nationals was to prevent their EU citizen children being in practice compelled to leave the EU and so deprived of their rights under Articles 20 and 21 of the TFEU.
  • That being so, those rights were properly to be regarded as arising only when the third country national parent did not otherwise enjoy a right to reside in the member state in question: if they did, then there was no risk of the children being compelled to leave the EU. It followed that from the moment that she was granted leave to remain, albeit limited, the Claimant in Akinsanya enjoyed no Zambrano right to reside.
  • It was contended that that analysis was supported by two decisions of the CJEU subsequent to Zambrano, ie Iida v Stadt UlmC-40/11, [2013] Fam 121, promulgated on 8 November 2012 and NA v Secretary of State for the Home Department C-115/15, [2017] QB 109.

Claimant’s arguments:

  • On behalf of the Claimant, it was argued that the existence of Zambrano rights is in principle independent of whether the parent enjoys an equivalent right as a matter of domestic law. The rights in question derive directly from articles 20 and 21 of the TFEU and do not require domestic implementation. It is true that if the substance of the relevant right – whether a right to reside or to work or to receive social assistance where necessary – is accorded by domestic law they will not need to invoke their Zambrano right; but that is not the same as saying that it is in those circumstances “extinguished”, or that it only exists when required. It is wrong in principle to treat an obligation as ceasing to exist as long as it is discharged.
  • Reliance was placed upon the reasoning of the Court in Sanneh v Secretary of State for Work and Pensions[2015] EWCA Civ 49[2016] QB 455( paragraphs 166 to 169 referred to).
  • It was submitted that it is clear from Sanneh, most obviously from the final sentence of paragraph 168 of Elias LJ’s judgment, that the Zambrano right to reside arises from the point when the Zambrano circumstances first arise and subsists thereafter so long as they obtain.

Court of Appeal decides the CJEU does not regard Zambrano rights as arising as long as domestic law accords to Zambrano carers the necessary rights:

In response to the Claimant’s position that a right arising under the EU Treaty must exist independently of any domestic rights which purport to reproduce it or which are to substantially the same effect, the Court had this to say between paragraphs 54 to 57 of its judgement:

  • That position did not correspond to the analysis of the nature of Zambrano rights adopted by the CJEU. It is clear from Iida and NA that the Court does not regard Zambrano rights as arising as long as domestic law accords to Zambrano carers the necessary right to reside (or to work or to receive social assistance).
  • As the Court recognises ( paragraph 72 of the judgment in Iida) the right of third country nationals to reside in a member state is normally a matter for that state. Zambrano rights are for that reason exceptional. They are not typical Treaty rights, since they arise only indirectly and contingently in order to prevent a situation where EU citizen dependants are compelled to leave the EU. That being so, it makes sense to treat them as arising only in circumstances where the carer has no domestic (or other EU) right to reside (or to work, or to receive necessary social assistance)
  • The approach was not inconsistent with Sanneh. In that case, unlike the claimant in Akinsanya, the claimant had no right to reside under domestic law, and the issue was whether her Zambrano right to reside arose prior to the point of imminent removal. Elias LJ ‘s conclusion in Sanneh was, in effect, that the Zambrano circumstances arose as soon as the claimant had no leave to remain and was thus (as a matter of domestic law) under a duty to leave and liable to removal ( in particular paragraph 169 of Sanneh). The Court was not considering a case where the claimant enjoyed leave to remain as a matter of domestic law. In such a case, on the CJEU’s analysis, the Zambrano circumstances do not obtain, and Elias LJ’s observations had no purchase.

Although the Court in Akinsanya 2 indicated that the Secretary of State’s submissions were preferred it was considered however, that did not answer the question whether the Secretary of State misdirected herself in framing the definition in the EUSS. It depended upon what she was intending to achieve.

The Court of Appeal stated that the fact remained that if at any time a Zambrano carer loses their right to reside as a matter of domestic law, the Zambrano right will arise (assuming that the effect of the carer leaving will be that the EU citizen child also has to do so): Zambrano is always waiting in the wings, and so long as the Zambrano circumstances obtain the carer can never be put in a position where their residence is unlawful.

Court of Appeal decides that the language of domestic EEA Regulation 16 (7) (c) (iv) is simply too clear to allow it to be construed as covering persons with limited leave to remain:

In relation to the construction of Regulation 16 of the EEA Regulations, the Court in Akinsanya 2, noted that the issue was whether the Secretary of State in framing the relevant definition in Annex 1 of the EUSS misunderstood the effect of Regulation 16 of the EEA Regulations, which was intended to give effect to the Zambrano jurisprudence in UK law.

The Claimant’s case was that limb (b) of the Annex 1 definition is inconsistent with the definition of “exempt person” in Regulation 16 (7). Head (iv) of that definition covers a person “who has indefinite leave to enter or remain in the United Kingdom”; but it says nothing about persons with only limited leave. The Claimant contended that persons with limited leave are accordingly not exempt persons and by virtue of paragraph (1) (b) are entitled to a derivative right to reside, alongside their leave to remain, so long as they satisfy the criteria under one of paragraphs (2)-(6).

On behalf of the Secretary of State, it was accepted that the natural meaning of Regulation 16 was indeed that a person with limited leave to remain is entitled to a derivative right to reside, but it was submitted (a) that such a reading would mean that the Secretary of State in making the Regulations had accorded rights to carers of EU citizen children that go beyond their entitlement in EU law; and (b) that it followed that Regulation 16 should be construed, despite the natural reading, in such a way as to avoid that result and to limit the rights conferred under it to carers who did not otherwise have leave to remain.

The Secretary of State argued that there was a presumption against “gold-plating” – that is “going beyond the minimum necessary to comply with a Directive”.

The Court reasoned as follows, including their conclusions:

  • It was observed by the Court that at the time that the Amendment Regulations were made, paragraph 10 of the Guidance issued to UK Border Agency staff at the time of the 2012 amendments read: “Where someone has limited leave (and so is not listed as one of the exempt categories above) and can demonstrate they meet all other requirements of Regulation 15A, then they can acquire a derivative right of residence.”
  • It did not accept that there is any general presumption against “gold-plating”.
  • Although the Court was prepared to accept that in making the Amendment Regulations, and thus also the relevant parts of Regulation 16, it was likely that the Secretary of State intended, in a broad sense, to do no more than implement the requirements of the Zambrano decision, matters were however not as simple as that.
  • That required the Secretary of State to take a view as to what those requirements actually amounted to. It may well be that her initial view of the effect of Zambrano was in accordance with the Claimant’s submissions before the Court: Iida and NA had not been decided when the Amendment Regulations were made.
  • A broad intention not to gold-plate does not exclude a recognition that the practical business of adapting an EU right into a domestic scheme may mean going rather beyond the minimum requirements of the right at the margins. The Court stated that may be that the Secretary of State took the view that allowing a Zambrano right to reside to those who already had limited leave to remain was more straightforward than having to consider whether particular forms of leave to remain, and in particular the conditions about working to which they might be subject, were fully consistent with Zambrano rights.
  • Whatever the contextual considerations, the language of Regulation 16 (7) (c) (iv) is simply too clear to allow it to be construed as covering persons with limited leave to remain.
  • The explicit reference to persons with indefinite leave to remain necessarily precludes its application to persons with limited leave. As Mostyn J stated at paragraph 72 of his judgment, the Secretary of State was seeking to imply words into the provision which completely change its scope and meaning.
  • The passage from the Home Office guidance quoted above establishes beyond doubt that this was not a case of drafting error: the Secretary of State intended persons with limited leave to be entitled to a derivative right to reside, even if that intention may have been based on an erroneous view of what Zambrano

The Court of Appeal concluded that its rejection of ground 2 meant that it would in substance dismiss the appeal, despite the conclusion on ground 1.

It was held that Mostyn J’s order quashing the Secretary of State’s decision of 29 September 2020 stood.

Commentary

What the position can and should be following Akinsanya:

The Claimant failed in seeking to run the argument that had succeeded initially in the lower courts: what saved the day was the argument related to the domestic formulation of the Zambrano right in the 2016 EEA Regulations.

At paragraph 51 of Akinsanya 1, Mostyn J concluded:

“My conclusion is that nothing decided in the CJEU or domestically since the decision in Zambrano supports the theory that the existence of a concurrent limited leave to remain of itself automatically extinguishes a claim for Zambrano residence. On the contrary, it is clear to me from the facts of Zambrano itself that the CJEU tacitly acknowledged that a limited national leave to remain, and a wider Zambrano right to remain, in many cases can and will coexist”.

The Court of Appeal in Akinsanya 2 however did not agree and as per paragraph 54 and 55 of its judgement, considered that:

  • the CJEU does not regard Zambrano rights as arising as long as domestic law accords to Zambrano carers the necessary right to reside (or to work or to receive social assistance.
  • Zambrano rights are not typical Treaty rights: it makes sense to treat them as arising only in circumstances where the carer has no domestic (or other EU) right to reside (or to work, or to receive necessary social assistance).

Following Akinsanya and the basis upon which she maintained her “win”, the correct legal position can and should be that both those with leave to remain and those without, by reference to the EEA Regulation, also fall within the definition of “person with a Zambrano right to reside” for the purpose of applications under the EUSS Scheme.

What the Secretary of State should now be doing is to amend Appendix EU and do so lawfully.

What of the Secretary of State’s Guidance?

It is apparent from the beginning of the judgement in Akinsanya 1 that Mostyn J noted:

“2.Essentially I have to decide whether the Secretary of State (then the Rt. Hon. Sajid Javid MP), in promulgating Appendix EU to the Immigration Rules on 7 March 2019, erred in law in his understanding of the scope of:

  1. i) The Zambrano jurisprudence; and
  2. ii) Regulation 16 of the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052) (“Regulation 16”).

3.If the answer is yes then it is agreed that the following relief should be awarded:

  1. i) An order quashing the decision of 29 September 2020;
  2. ii) A declaration that the Secretary of State erred in law when framing in Annex 1 to Appendix EU to the Immigration Rules the definition of a “person with a Zambrano right to reside” under paragraph (b) as “a person …. without leave to enter or remain in the UK, unless this was granted under this Appendix” (“para (b)”)*;

iii) A declaration that the Guidance issued by the Secretary of State “Free Movement Rights: derivative rights of residence” (version 5.0 of 2 May 2019) and “EU Settlement Scheme: person with a Zambrano right to reside” (version 4.0 of 27 April 2021) are legally erroneous insofar as they state that a Zambrano right to reside is not available to a person if he/she has limited leave to enter or remain in the UK; …….”

By reference to Mostyn‘s initial Order of 9 June 2021, a declaration was also made that:

“2. The Guidance issued by the Secretary of State (1) “Free Movement Rights: derivative rights of residence” (version 5.0 of 2 May 2019) and (2) “EU Settlement Scheme: person with a Zambrano right to reside” (version 4.0 of 27 April 2021) is legally erroneous insofar as it states that a person who has limited leave to enter or remain in the UK cannot also have a derivative right to reside by virtue of regulation 16(1) of the Immigration (European Economic Area) Regulations 2016, by satisfying the criteria in regulation 16(5) of those Regulations”.

The referred to Guidance is still in publication and unamended.

Akinsanya 2 does not consider issues related to the legally erroneous nature of the Secretary of State’s Guidance.  The answer however seems to lie in the Court of Appeal making it clear: “As I understand it, the reconsideration referred to in the order of 17 June 2021 has not been undertaken pending this appeal. It will no doubt now proceed. Nothing in this judgment should be taken as expressing any view about how the Secretary of State can or should amend the terms of the EUSS, as to which we heard no argument”. {70}

What the Court of Appeal was prepared to do as indicated by paragraph 69 of its judgement, was to modify by agreement with Counsel, the terms of the declaration of Mostyn J’s Order as follows:

“The Secretary of State erred in law in her understanding of regulation 16 of the Immigration (European Economic Area) Regulations 2016 when providing, in Annex 1 to Appendix EU to the Statement of Changes to the Immigration Rules HC 395 as amended, that the definition of a ‘person with a Zambrano right to reside’ includes paragraph (b) ‘a person …. without leave to enter or remain in the UK, unless this was granted under this Appendix’.”

The Order of 17 June 2021 in Akinsanya 1 includes amongst other issues, the following:

“5. This order and the order of 9 June 2021 shall be appended to the judgment dated 9 June 2021 which shall be republished on the Bailii website”.

It is therefore expected that the Secretary of State will have regard to the expressed terms of the Orders and will, amongst other issues, proceed to issue new or amended Guidance, alongside the necessary amendments to Appendix EU.

 

How a previous long term overstayer bypassed the 10year route to settlement and obtained ILR under the 10year lawful residence Rule

It took some gumption for ‘PG’ to submit a SET(LR) application in April 2021 requesting that she be granted indefinite leave to remain in the UK.

PG had only been granted limited leave to remain for the very first time in June 2019, following 18years residence in the UK as an overstayer.

I say gumption as a quick glance at her previous immigration history might have made another applicant balk at the thought of seeking to approach the Home Office so soon after a grant of long-awaited leave.

This is what the Home Office knew regarding PG prior to the settlement application of April 2021:

  • She had previously sought entry to the United Kingdom in 1995 as a visitor however was refused entry and removed to Zimbabwe. At that time Zimbabwean nationals could simply board a plane headed for the UK and request entry as a visitor at the airport.
  • She made two further separate attempts to enter the UK in 1999 but was denied entry each time at the airport.
  • She re-entered the UK in February 2001 using a counterfeit passport in another’s name.
  • She next came to the attention of the UK authorities in late 2003 when she attempted to obtain a British passport by claiming to have been born in the UK. It was found that she had submitted a forged British birth certificate.
  • She was charged, convicted and sentenced to 3months imprisonment for using a false instrument in 2004.
  • At least 7 applications based on private and family life, including an asylum claim, two failed appeals and an unsuccessful judicial review claim were submitted between 2004 and 2018.
  • Having been given a custodial sentence of 3months, following release, from September 2004 she was granted Temporary Admission(TA) and with reporting being one of the conditions of TA, she reported in compliance until 2012, ie for 8years.
  • The last two reporting events in 2012 were cancelled by the Home Office. Thereafter, the Home Office did not ask PG to report (as evident for the Subject Access Disclosure obtained in advance of submission of the settlement application).
  • PG therefore did not report for 7years as part of conditions of Temporary Admission right up till grant of leave in June 2019.

Why did PG seek to submit an ILR application?

PG(along with several others) contacted me following a short blog post of 12 February 2021 which raised issues that appeared to catch her circumstances:

Currently on the 10year route to settlement but already with prior significant residence in the UK? You may be eligible now to apply for indefinite leave to remain – UK Immigration Justice Watch Blog

The SET(LR) application under the long residence Rules

PG placed reliance upon Paragraph 276B of the Immigration Rules.

It was submitted on her behalf that she fulfilled all the requirements for indefinite leave to remain following a period of 10 years continuous lawful residence in the UK.

It was argued that for the purposes of the long residence Rule, she had remained lawfully in the  UK compliant with her conditions of  Temporary Admission from 2004 and then was immediately and automatically from a specific point in time, lawfully in the UK on Immigration Bail until she was granted limited leave to remain in June 2019.

It was also submitted that there were no reasons why it would be undesirable on public interest grounds to grant PG indefinite leave to remain.

PG had initially instructed me in 2019 and obtained her first ever grant of limited leave on 26 June 2019 as an unmarried Partner on the 10year route to settlement. The very same arguments which I set out on PG’s behalf in representations of 2019 and her statement of the same period as regards why she satisfied the suitability criteria, were also relevant for consideration as balancing factors for the purposes of the public interest considerations.

It was put forward that PG’s application did not fall for refusal under the general grounds for refusal.  Where it was concluded they did apply in relation to PG’s past conduct, submissions had been made within the Representations.

27page Representations were submitted in support of PG’s settlement application.

Extensive reference was made to the following:

  • Disclosure from the Subject Access Request Unit
  • The Immigration Rules
  • Long Residence Guidance
  • Relevant paragraphs of Schedule 2 to the Immigration Act 1971
  • Section 11(1) of the Immigration Act 1971 Act
  • Bail Guidance
  • Schedule 10 to the Immigration Act 2016

Hoque & Ors v The Secretary of State for the Home Department (Rev 1) [2020] EWCA Civ 1357 (22 October 2020), was referred to in passing but it was clear arguments could be sustained on PG’s behalf without reliance upon Hoque.

What was argued in the alternative?

Whilst it was maintained that PG fulfilled the requirements of indefinite leave to remain on the basis of the 10year Rule, reliance was placed on the following Immigration Rule in the alternative:

“276A04. Where a person who has made an application for indefinite leave to remain under this Part does not meet the requirements for indefinite leave to remain but falls to be granted limited leave to remain under this Part on the basis of long residence or private life in the UK, or outside the rules on Article 8 grounds:

(a) The Secretary of State will treat that application for indefinite leave to remain as an application for limited leave to remain;

(b) The Secretary of State will notify the applicant in writing of any requirement to pay an immigration health charge under the Immigration (Health Charge) Order 2015; and

(c) If there is such a requirement and that requirement is not met, the application for limited leave to remain will be invalid and the Secretary of State will not refund any application fee paid in respect of the application for indefinite leave to remain”.

Accordingly, PG relied upon the following:

  • Her family life as a Partner under Appendix FM but with a request to switch into the 5year route to settlement as she fulfilled the relevant requirements and had provided adequate documentation
  • She contended in the alternative that at the date of the application in April 2021, she had resided in the UK for at least 20years continuously and placed reliance upon the Immigration Rules, Paragraph 276ADE(1), as a basis of claim.

What was the outcome of PG’s ILR application?

It took nearly 9months for PG’s ILR application to be decided.

During consideration of the application, a complaint was forward to the Complaints Unit on PG’s behalf raising issue as regards the delay in making a decision, more so as her limited leave to remain was due to “expire” on 18 December 2021 without a decision being made on the April 2021 ILR application.

The Complaints Unit responded indicating PG only had a limited leave FLR(FP application outstanding and such applications were not subject to a time scale for consideration.

As matters stood, PG could not possibly submit any other application – both her applications for settlement and then limited leave in the alternative were contained in the application submitted in Aril 2022. She was however covered in the meantime by Section3C leave.

The complaint was escalated to the Complaints Review Unit in December 2021, stating amongst other matters:

“We request a review of the received response below. The response appears divorced from the reality of the facts of this case. Our client did not submit an FLR (FP) application. As per the attached online Set (LR)application form, she submitted an application for indefinite leave to remain on 23 April 2021.  That is the application that has taken the relevant department 7months to decide…….  In any event, an ILR application was submitted on our client’s behalf having regard to the Immigration Rules. It is incumbent upon the Secretary of State that proper procedure be adhered to and an actual decision be made on that application and communicate a decision on the ILR application. There has been an unreasonable delay in the consideration of the ILR application”.

A further chaser email was forwarded to the Complaints Review Unit in January 2022.

Without further ado, on 17 January 2022, PG’s application for indefinite leave to remain under the 10year lawful residence Rule was granted by the Secretary of State.

 

 

 

Paragraph 297 Sole responsibility test & Indefinite leave to enter: Appellant child succeeds before the Tribunal despite a previous failed appeal

Applications relying upon Paragraph 297 of the Immigration Rules face an uphill battle at appeal if refused by an Entry Clearance Officer.

A short refusal decision may at first glance seem fairly capable of being addressed at appeal, however it usually becomes necessary to anticipate well in advance of the appeal hearing what else related to Paragraph 297, for example a sole responsibility contention, might be disproportionality and dramatically thrown into issue during cross examination at appeal and in oral submissions by the Presenting Officer.

Conversely, what may seem to be a hopeless case, even following previous failure before a Tribunal Judge, might upon a second view, give rise to a subsequent successful appeal for an Appellant, where advance effective preparation is the focus from application stage through to appeal.  A recent successful second appeal confirms this.

Relevant Immigration Rule

Part 8 of the Immigration Rules provides at Paragraph 297 of the Immigration Rules:

Requirements for indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom

(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:

(a) both parents are present and settled in the United Kingdom; or

(b) both parents are being admitted on the same occasion for settlement; or

(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or

(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or

(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing; or

(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and

(ii) is under the age of 18; and

(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and

(v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and

(vi) holds a valid United Kingdom entry clearance for entry in this capacity; and

(vii) does not fall for refusal under the general grounds for refusal”.

Failure in previous application and appeal

Working with previous legal representatives, in 2018 the Appellant (EG), submitted an application for indefinite leave to enter relying upon paragraph 297 of the Immigration Rules. His mother held limited leave to remain as a Partner and resided in the UK with EG’s British step- father.  EG’s mother had long separated from his biological father who had passed away in Nigeria in 2013.

As EG’s biological father was deceased, it was put forward having regard to the definition of “parent” in Paragraph 6 of the Immigration Rules, that EG’s stepfather was his parent:

“Parent” includes:

(a) the stepfather of a child whose father is dead, and reference to stepfather includes a relationship arising through civil partnership…………..”

The application for entry clearance was refused and was dismissed on appeal in 2019 as the Tribunal Judge found that in relation to EG:

  • his biological father was said to have died in 2013, however his death was not registered until 5years later
  • his biological father’s death certificate erroneously recorded his age at the date of death
  • The Judge was satisfied that there was no reasonable explanation for the late registration of the birth or the discrepancy in the father’s age and therefore was not satisfied that EG’s father was deceased.

The Judge concluded in 2019 that EG’s mother had no sole responsibility for him because he was not satisfied that the father was deceased and there was nothing more than bare assertions that she and/or his stepfather had continuing control and direction over EG’s life. Neither were there serious and compelling family or other considerations which made EG’s exclusion from the UK undesirable because of the lack of evidence as to his circumstances.

The second application of 2020 under Paragraph 297and the submitted documentary evidence

Despite being advised by previous legal representatives that there were no prospects of success in pursuing a permission application to the Upper Tribunal, his mother and step-father were adamant the Judge had got wrong his decision in 2019 on the matter of EG’s father’s death. Their position was that EG’s father was indeed deceased and they had sole responsibility of EG.

Having instructed me in mid-2020, months after exhaustion of appeal rights and a few days before he turned 18years of age, a new paragraph 297 application was submitted on behalf of EG. It was maintained that his stepfather met the definition of a parent under paragraph 6 of the Immigration Rules.

In relation to documentary evidence in support of the second application, this included the following:

  • The very same death certificate that the Tribunal refused to place weight upon in 2019
  • The documentary evidence previously submitted in the 2019 appeal, such as documents from the Nigerian authorities confirming the death as well as from the hospital where EG’s father had passed away. The evidence from the authorities had had no weight placed upon it in 2019 as the issues raised by reference to the death certificate was considered in effect by the Judge to have tainted the rest of the evidence
  • Joint detailed statement from EG’s mother and his stepfather
  • Statement from EG’s maternal aunt who he had been living with since 2013 after his mother came to the UK.
  • Four statements, including from his paternal uncle and aunt in Nigeria who confirmed that EG’s mother had had sole responsibility for more than a decade following his parents divorce; provided explanations as to the errors made upon registering EG’s father’s death including the reasons for the delay in registering the death
  • Evidence of contact between the Appellant and his mother and stepfather
  • Money remittances running from 2015 for the Appellant’s support from his parents in the UK to Nigeria
  • Evidence of visits to Nigeria by his mother and stepfather
  • Evidence regarding his parent’s tenancy agreement in the UK and the landlord’s written consent that EG could on arrival reside in the UK with his parents at the residence
  • Bank statements, payslips and letters from the Employers going towards his parents employment in the UK
  • DNA reports in relation to the Appellant’s relationship with his mother- no weight had previously been placed upon his birth certificate as his birth had been registered late

The second refusal of entry clearance in 2020

Although EG had made his application under paragraph 297, the entry clearance officer considered the application under Appendix FM( Section EC-C)on the basis that, at the time he made his application, his mother had limited leave to remain in the UK as a partner. His application was refused in late 2020 because the entry clearance officer was not satisfied that the appellant’s father was deceased as claimed or that his mother had sole responsibility for his upbringing or that there were exceptional circumstances which would mean that the refusal would have unjustifiably harsh consequences for the appellant or his family.

EG appealed the refusal decision.

Caselaw relied upon at application and on appeal

TD (Paragraph 297(i)(e): sole responsibility) Yemen [2006] UKAIT 00049, provides:

“Sole responsibility” is a factual matter to be decided upon all the evidence. Where one parent is not involved in the child’s upbringing because he (or she) had abandoned or abdicated responsibility, the issue may arise between the remaining parent and others who have day-to-day care of the child abroad. The test is whether the parent has continuing control and direction over the child’s upbringing, including making all the important decisions in the child’s life. However, where both parents are involved in a child’s upbringing, it will be exceptional that one of them will have “sole responsibility”

……………….

Summary

i.Who has “responsibility” for a child’s upbringing and whether that responsibility is “sole” is a factual matter to be decided upon all the evidence.

ii.The term “responsibility” in the immigration rules should not to be understood as a theoretical or legal obligation but rather as a practical one which, in each case, looks to who in fact is exercising responsibility for the child. That responsibility may have been for a short duration in that the present arrangements may have begun quite recently.

iii. “Responsibility” for a child’s upbringing may be undertaken by individuals other than a child’s parents and may be shared between different individuals: which may particularly arise where the child remains in its own country whilst the only parent involved in its life travels to and lives in the UK.

iv.Wherever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility.

v.If it is said that both are not involved in the child’s upbringing, one of the indicators for that will be that the other has abandoned or abdicated his responsibility. In such cases, it may well be justified to find that that parent no longer has responsibility for the child.

vi.However, the issue of sole responsibility is not just a matter between the parents. So even if there is only one parent involved in the child’s upbringing, that parent may not have sole responsibility.

vii. In the circumstances likely to arise, day-to-day responsibility (or decision-making) for the child’s welfare may necessarily be shared with others (such as relatives or friends) because of the geographical separation between the parent and child.

viii. That, however, does not prevent the parent having sole responsibility within the meaning of the Rules.

ix.The test is, not whether anyone else has day-to-day responsibility, but whether the parent has continuing control and direction of the child’s upbringing including making all the important decisions in the child’s life. If not, responsibility is shared and so not “sole”.

Submissions at appeal in October 2021

On the day of the hearing, following rigorous cross -examination of EG’s parents, in particular his mother, on behalf of the Entry Clearance Officer, the Presenting Office relied upon the refusal letter and submitted that Devaseelan ([2002] UKIAT 702 – STARRED Secretary of State for the Home Department v D (Tamil) [2002] UKIAT 00702 applied because:

  • the decision of the Tribunal Judge from October 2019 had not been challenged or not successfully challenged and so that was the Tribunal’s starting point
  • It had not accepted in 2019 that EG’s father was deceased and we were in the same situation now as had been in 2019  because exactly the same documents as had been produced  had been produced to the present  Tribunal
  • EG’s father was not deceased and his mother did not have and had not had sole responsibility for his upbringing
  • EG could not apply to come to the UK based upon his relationship with his stepfather because his stepfather was not his parent because his father was not deceased.
  • The mother could not be considered to be present and settled in the UK because she has limited leave to remain

I represented EG at his appeal hearing and submitted as follows, amongst other matters:

  • EG was seeking indefinite leave to enter under paragraph 297
  • He maintained that his father was deceased and his stepfather met the definition of a parent under paragraph 6 of the Immigration Rules
  • the assessment under Appendix FM was a misunderstanding of the relevant law relied upon and tainted the rest of the decision
  • the re-submitted application sought to address the deficiencies of the earlier application and on the balance of probabilities, it had been shown that EG’s biological father was deceased
  • the entry clearance officer did not engage with the statements submitted with the application which provided the reasonable explanations for the deficiencies as noted by the Judge in 2019
  • in so far as the error in the father’s age at death was concerned, EG’s mother was not aware of that error at the previous hearing and therefore EG’s maternal uncle and aunt had now produced statements explaining how that error came about. Those explanations were the reasonable explanations missing by the Tribunal Judge in 2019
  • there was no evidence submitted of the attempts stated in the refusal decision of 2020 made by the entry clearance officer to verify the death of the father
  • on the balance of probabilities, EG’s father was deceased and his mother has had and still has sole responsibility for him. The Tribunal Judge found against her in 2019 because he only had bare assertions before him that she had sole responsibility. Now there were other statements confirming that she does have direction and control over his life as per TD (Paragraph 297(i)(e): sole responsibility) Yemen [2006] UKAIT 00049

The appeal is allowed

In allowing the appeal, the Tribunal Judge provided detailed reasoned decision.

A finding that the Appellant’s father was deceased:

Before she went on to consider whether the parents in the UK had sole responsibility for EG’s upbringing, the Judge first considered whether his  father was deceased, making considerations and reaching conclusions as follows:

  • Tanveer Ahmed (2002 UKIAT 439*)- STARRED A v Secretary of State for the Home Department (Pakistan) [2002] UKIAT 00439 makes it clear that the onus is upon the appellant to show that the document which he submits can be relied upon and the Tribunal Judge had to consider, having looked at all the evidence in the round, that the death certificate could be one upon which she could place reliance
  • The evidence from EG’s paternal aunt and the nurse/friend who were with EG’s father at the time of his death in Nigeria were very persuasive but were countered by the concerns raised as to the authenticity of the information contained within the death certificate.
  • The Judge noted that the entry clearance officer’s refusal letter claimed to have made attempts to verify the death but had provided no evidence of those attempts. The Presenting Officer was not able to supply that information at the hearing and therefore, despite 2 sets of Tribunal directions making it quite clear that that information was required, the Judge relied upon MH (Respondent’s bundle: documents not provided) Pakistan [2010] UKUT 168 (IAC)and assumed that, because the entry clearance officer had not provided the evidence of the attempts made to verify the death, those attempts were no longer relied upon in the refusal and the Judge took no account of that evidence.
  • The Judge was persuaded by the cause of death certificate when taken with the statements provided and therefore found that EG’s father was indeed deceased.

A finding of sole responsibility for the Appellant’s upbringing:

  • The Judge stated she had considered the case of TD (Paragraph 297(i)(e): sole responsibility) Yemen [2006] UKAIT 00049 which sets out the guidelines for determining who has sole responsibility for a child’s upbringing. It was noted that TD makes it clear that mere financial support is not enough to satisfy the requirements for sole responsibility. The Judge had to be satisfied that it was the mother who was making all the major decisions in the appellant’s life and whether she had the continuing control and direction of his life.
  • EG’s mother had provided evidence of money transfer receipts from her and her husband to her sister who has cared for EG since his mother came to the UK 2013
  • EG’s mother had provided letters from his school stating that she and her husband had maintained contact with the school in relation to the appellant and introduced her sister to the school as the person caring for him whilst she was away.
  • The Judge in 2019 had noted that there were missing money transfer receipts within the papers supplied to him however at the appeal of October 2021, EG’s mother and her husband had managed to supply money transfer receipts going back to 2015. When she came to the UK 2013, she left a large sum of money with her sister, who was also working at the time, which was sufficient for the appellant’s needs.
  • The previous Tribunal decision of 2019 noted evidence of visits by his mother in 2018 and visits by the sponsor’s husband between 2014 and 2018. It also noted evidence of contact between 2018-19. Before the Judge in 2021 was further evidence of visits by the mother to the appellant as recently as July 2021 by way of passport stamps and photographs.
  • EG’s day-today care had been with his maternal aunt since his mother went to the UK in 2013. The fact of his day- to-day care was confirmed by his paternal aunt and uncle in their affidavits in which they stated that the appellant did not live with them and his father had no dealings with him.
  • The appellant’s late father’s landlord confirmed that EG’s father lived in the same compound as his siblings and did not live with the appellant in Nigeria
  • The Judge was satisfied that the mother had sole responsibility for the appellant’s upbringing since his birth or at least since her divorce from the appellant’s late father in 2004
  • The mother had made the major decisions in the appellant’s life and it was the mother who had the continuing control and direction of the appellant’s life

Conclusion

EG’s appeal was allowed in November 2021 and the requisite 28days having gone by without an application for permission to appeal from the entry clearance officer, EG has now received an email inviting him to present his passport to the entry clearance officer so that he may be granted entry clearance to the UK.

Long Residence: Afzal rejects Hoque’s concept of historic book-ended periods of overstaying as counting towards the ten-year lawful period

After Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357, the recent Court of Appeal decision in Afzal, R (On the Application Of) v Secretary of State for the Home Department [2021] EWCA Civ 1909 (17 December 2021) has left a few immigration practitioners flummoxed.

Could it be that Afzal has just struck a death-knell on claims seeking to rely on Hoque’s judicially engineered concept of historic book-ended overstaying as counting towards10years continuous lawful residence?

Afzal is a hard read, however perseverance rewards the reader. Not only is the decision relevant to  Section 3C leave issues and validity of applications ( as expounded in (Mirza) v Secretary of State for the Home Department [2016] UKSC 63) but also the possible effects on a long residence application following previous invalidation of a leave to remain application after the rejection of a fee waiver application.

Background:

The appellant was granted entry clearance as a student on 4 February 2010 with limited leave to remain until 14 April 2013. On 12 December 2012 he made a further application to remain as a Tier 1 entrepreneur and although this was initially refused, he was subsequently granted further leave to remain until 14 July 2017.

On 6 July 2017, before his leave had expired, he applied for an extension of leave but the application was rejected as invalid by a notice dated 22 January 2018. The reason for the rejection was that the appellant had not paid the Immigration Health Surcharge (“IHS”), one of the fees he was required to pay.

When the appellant lodged his July 2017 application, he also applied for a waiver of fees. There are two fees to pay, an application fee and the IHS, but they may be waived for certain specified reasons.

By a letter dated 18 October 2017, the appellant was told that his fee waiver application had been refused and that the fees had to be paid within ten working days. He paid the application fee within that period but he failed to pay the IHS. He was sent a further letter on 8 November 2017, which he claimed not to have received, giving him yet further ten working days to pay the IHS. This meant that he had until 22 November 2017 to make the payment.

He still failed to pay and was sent a letter dated 22 January 2018 informing him that his application had been rejected as invalid for non-payment of that fee. He did not challenge that decision.

The appellant then made a fresh application on 2 February 2018 for further leave to remain, accompanied by the appropriate fees.

This application was successful and on 5 September 2019 the appellant was given leave to remain until 4 March 2022.

On 28 February 2020 he made an application for Indefinite Leave to Remain (“ILR”) on the basis that he had completed 10 years of continuous lawful residence qualifying him for ILR pursuant to paragraph 276B of the Immigration Rules. He was lawfully in the country when he made his application for ILR on 28 February 2020.

On 11 March 2020 the Secretary of State refused the application on the basis that there was a period when the appellant was not lawfully resident in the country with the consequence that the period of continuous lawful residence had been broken.

The appellant sought leave to bring proceedings for judicial review against that decision. His challenge took him all the way to the Court of Appeal.

The provisions that lay at the heart of the appeal:

From the facts in Afzal, there was a period between 14 July 2017 and 5 September 2019 that the appellant did not have formal leave to remain. One period of leave had ended on 14 July 2017 and there was a gap until further leave was granted on 5 September 2019.

The inter-relationship between the following two main provisions were considered by the Court of Appeal in Afzal to “lie at the heart of this appeal”.

  • Section 3C of the Immigration Act 1971:- this provides that in certain stipulated circumstances leave will be extended pending the determination of a fresh application for leave, provided that application was made prior to the previous period of leave coming to an end.
  • Paragraph 39E of the Immigration Rules:- this provides that there may be periods when residence without leave(i.e periods of overstaying) must be “disregarded”. Where this rule applies, it will not break the period of continuous lawful residence, however it was considered a matter of dispute whether such periods will actively count as periods of lawful leave when calculating whether the period of ten years has been achieved.

Paragraph 39E provides:

“39E. This paragraph applies where:”

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or

(2) the application was made:

(a) following the refusal of a previous application for leave which was made in-time; and

(b) within 14 days of:

(i) the refusal of the previous application for leave; or

(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or

(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or

(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing”.

Paragraph 276B of the Immigration Rules states relevantly:

“The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.

……………………………

(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –

(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or

(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.”

Grasping the arguments advanced:

Amongst others, the following arguments were advanced before the Court of Appeal:

  • The appellant argued that the period of overstaying from 17 July 2017 to 22 January 2018 fell within the scope of section 3C. It was contended that the period fell within section 3C because the July 2017 application was made before leave had expired and was not determined until the applicant was formally notified that the 2017 application had been rejected as invalid on the 22 January 2018.
  • The Secretary of State submitted that this was wrong because there never was a valid application made at all. The application was not refused; it was rejected as being a nullity because of the failure to pay the IHS.
  • It was further argued on behalf of the appellant that even if section 3C was not engaged beyond 22 November 2017 (or 14 July 2017 if the Secretary of State’s argument was right) it did not matter because the decision on the first application was made on 22 January 2018 and the second application was made within 14 days of that decision. The whole period of overstay satisfied the requirement of paragraph 39E(b)(i). As such, it was to be disregarded pursuant to paragraph 276B(v).
  • The appellant’s argument was noted to rest on the premise that whereas an invalid application does not constitute an application within the meaning of section 3C, nonetheless it was an application within the meaning and scope of paragraph 39E. On this assumption, the analysis in (Mirza) v Secretary of State for the Home Department [2016] UKSC 63 had no relevance to the proper construction of paragraph 39E of the Immigration Rules. The submission was that an application falls within that provision even if it is a nullity; and a decision on the application is not made until the applicant is notified that it has been rejected, which in this case was on 22 January 2018.
  • On behalf of the appellant it was put forward that this was a refusal of the application within the meaning of paragraph 39E. Since the February 2018 application was made within 14 days of that date, paragraph 39E was engaged and ensured that the whole of the book-ended period of overstaying, from the expiry of leave until the decision to vary leave was taken on 5 September 2019, was a period which had to be “disregarded”. Furthermore, in the light of the decision of the court in Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357 on the meaning of “disregarded”, the whole period of overstaying should count when assessing whether the ten year period of continuous lawful residence was satisfied. On that basis, the obligation to reside for ten years was met and the refusal to grant ILR was unlawful.
  • On behalf of the Secretary of State, it was contended that essentially the same analysis should apply to paragraph 39E as the Supreme Court adopted in Mirza in relation to section 3C. Here the application was, or at least became, invalid and therefore was a nullity from that point. Thereafter there was no valid application at all which was capable of attracting the protection of paragraph 39E. It was submitted that the language of paragraph 39E was consistent with this approach; it does not talk about a rejection of an invalid application but the refusal of an application. That suggested that the application had been considered on its merits and refused, rather than not considered at all because the application was invalid.

Preliminary observations of the Court on the relevant provisions and import of Hoque:

Sir Patrick Elias, who gave the leading judgement, made the following observations in relation to Section 3C, Paragraph 39E as well as Paragraph 276B, at paragraph 11 of the judgement:

  • A critical part of the analysis in the case involved a construction of the Immigration Rules.
  • When applying for ILR, the period of ten years’ residence must be continuous. Continued residence as an overstayer after an immigrant’s specified period of leave has come to an end is not in general a period when the applicant is lawfully in the country. It will therefore break the continuity of lawful residence so that if fresh leave is subsequently given, the period of continuous lawful residence will have to start again. However, this will not be so where these periods of overstaying can be brought within a provision which specifically provides otherwise. In this case that means either a period where leave has been extended pursuant to section 3C or, following the Court of Appeal decision in Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357[2020] 4 WLR 154,, where the period has to be “disregarded” because it falls within the scope of paragraph 39E.
  • A potential difference between the effect of section 3C and paragraph 39E is this: where section 3C is applicable, it has the effect of extending the period of leave and therefore the applicant remains resident pursuant to leave which necessarily brings him or her within the definition of lawful residence. That period therefore counts towards the assessment of the ten years period of continuous lawful residence. Whether a period falling within paragraph 39E can also count towards the assessment of ten years was an issue in the appeal and turned on the meaning of “disregarded” in paragraph 276B(v).
  • The proper construction of section 276B(v) was considered by the Court of Appeal in Hoque. A majority of the court (Underhill and Dingemans LJJ; McCombe LJ dissenting) held, following a careful analysis of the language, structure and history of the provision, that whilst the first sentence of subsection (v) is focused on the time when the decision on the application is made, the second sentence is really misplaced and should be considered as qualifying section 276B(i)(a). It is focusing upon past periods of overstaying which occurred between periods of lawful residence; as the court put it, they were periods of “book-ended overstaying” i.e. periods of overstaying which were book-ended by periods of lawful residence pursuant to leave. These contrast with open-ended periods of overstaying, caught by the first sentence in sub-para.(v), which typically occur when an application for ILR is refused so that there are not two separate and distinct periods of lawful residence pursuant to leave. The effect of reading the provisions in this way is that periods of historic overstaying must be disregarded when assessing whether the ten year period of continuous lawful residence has been satisfied, provided these periods of overstaying meet the conditions specified in para.39E. The observations of the Court to the effect that section 276B(i)(a) is qualified by the second sentence of subsection (v) were strictly obiter, since the Hoque case itself concerned the first sentence of subsection (v).
  • What is very much in issue, however, is precisely what is meant by the period of overstaying being “disregarded”. It is common ground that the effect of the disregard is at least that these periods of historic, book-ended overstaying will not break the period of continuous residence so that earlier periods of lawful residence can be taken into account when determining the relevant accumulated period. The court in Hoque went further, however, and held that paragraph 39E periods of overstaying should positively count towards the period of continuous lawful residence. The Secretary of State submits that the court was wrong to do so.
  • Both section 3C and paragraph 39E(2) are only engaged where an application (in the case of paragraph 39E(1) the first application) is made before leave has expired. Section 3C says so in terms whereas the language of paragraph 39E is that the first application must be made “in time”, but that has been held to mean before leave has expired. It does not include an application made during the “grace period” of fourteen days: see Secretary of State for the Home Department v Waqar Ali[2021] EWCA Civ 1357. It follows that a second application made after leave has expired but within 14 days of that date will attract the protection of paragraph 39E but it is not itself an application “in time” so as to allow subsequent applications to fall within the scope of the provision. It is not possible, therefore, for an applicant to make successive applications each of which (if made within the grace period) satisfies the conditions of paragraph 39E with the consequence that successive periods of overstaying have to be “disregarded”.
  • The purpose of section 3C is clear. An applicant who puts in an application to vary leave before the current period of leave expires should not be treated as unlawfully resident until either that application has been finally determined (including any appeal or review), or, putting it broadly, until opportunities to challenge it have run their course without being pursued. Potential delays in handling an application should not be held against the applicant.
  • Where section 3C extends leave, paragraph 39E requires a fresh application to be made within 14 days of the expiry of extended leave; see paragraph 39(2)(b)(ii). If a final determination is made before leave expires, however, section 3C never comes into play and the application must be made within 14 days of the date of the final decision i.e. following appeals or reviews, or until the opportunity to invoke them has run out of time: paragraphs 39E(2)(b)(i),(iii) and (iv).
  • An important issue raised in this case is whether paragraph 39E may also be relied upon in situations where the final decision on an initial application made before the expiry of leave is not taken until after the stipulated period of leave has expired, and yet for some reason section 3C cannot be invoked to extend leave.

Validity issues and Section 3C leave: relevance of Supreme Court decision of Mirza

The Court began their consideration by a reference to the relevance of the Supreme Court decision of Mirza:

  • It was noted that in Mirza were two appellants, Mr Iqbal and Mr Mirza, who were required to pay a fee in the manner required by the relevant rules but they failed to do so. The third appellant, Ms Ehsan, failed to provide biometric information which was, however, not sought by the Secretary of State until some time after the original application had been made. Unlike the application fee, therefore, it did not have to be submitted with the application.
  • The appellants all contended that since they had made an application before their previous leave had expired, section 3C was engaged and had the effect of allowing their leave to continue until the application had been determined, and the determination was only made when they were told that their applications were rejected for non-compliance.
  • The Supreme Court held that in the case of the two applicants who had failed to provide their fees, section 3C was never engaged. This was because the effect of the application being invalid was that in law it was no application at all, with the consequence that the requirement in section 3C that there should be an application before the leave expired had not been satisfied. A purported application was not an application within the meaning of the section
  • In relation to the position of Ms Ehsan, Lord Carnwath considered that this required a different analysis from the position of the other two appellant. Her application was made in December 2011, but it was not until the following February that she was required to make an appointment. At paragraph 37 of its judgement the Court considered: “It is difficult to see any reason why a failure at that stage should be treated as retrospectively invalidating the application from the outset, and so nullifying the previous extension under section 3C of her leave to remain. There appears to be nothing in section 7 of the 2007 Act to support such retrospective effect. The revised version of regulation 23(2)(b) (which was in force at the time of the March decision to reject her application as invalid) does no more than give the Secretary of State power to “treat” the application as invalid. There might be some question as to how that wording relates to the terms of section 7(2), but as I have said there was no challenge to its validity. In any event there is no reason to read it as having retrospective effect. The natural reading, which is consistent with the statutory purpose, is to give power to invalidate the application as from the time of the decision, but not before…”

The Court of Appeal in Afzal noted the cases in Mirza related to a time where there was no rule – as there is now – providing for a grace period during which a defective application could be remedied. (The relevant provisions are now found in paragraph 34B of the Immigration Rules, which provides essentially the same ten working days period adopted in paragraph 6 of the Immigration (Health Charge) Order) could be remedied

Relevantly, on behalf of the appellant in Afzal, it was argued:

  • For applicants who are seeking an exemption from the duty to pay the fees( fee waiver applications), the application was valid when submitted. The duty to pay the fees, like the obligation to provide biometric information, did not arise unless and until the application for relief from the duty to pay had been refused and an obligation to pay had been confirmed. It would be absurd to say that the application is invalid ab initiofor failure to make a fee payment when there was a genuine question whether it was required at all. The fees were only due once the application for an exemption had been determined against the applicant, and even then the applicant had ten working days to make the payment. Just as Ms Ehsan’s leave was held to extend under section 3C until the applicant had been notified that her application had been rejected, so it should be extended in a similar way for the appellant. This meant that the period of leave was properly extended until 22 January 2018 when he was notified of the invalidity.

For the Secretary of State, it was submitted:

  • There was in fact a duty to pay the fees with the application and if they were not paid, the position was akin to the non-fee payers in Mirza. The application to be relieved of the duty to pay did not alter that basic requirement. Had the fee been paid it would have retrospectively validated the application, but it was not. There never was a valid application and section 3C was simply not engaged.

There was a valid application to vary leave entitling reliance on Section 3C but its continuing validity was conditional on the appellant paying the relevant fee within the requisite time limit:

In seeking to draw the conclusion that the appellant’s application of July 2017 application was conditionally valid”, at paragraph 32 and 33 the Court in Afzal considered as follows:

“In my judgment neither of the positions adopted by the parties is correct. I would accept that if the obligation to pay the fee is not in dispute, and it is not paid with the application as it should be, that will invalidate the application ab initio unless the fee is paid within the ten day period of grace which is now built into the process. If it is paid within that period, that will validate the application retrospectively. But in my view section 3C would not extend time until the end of the grace period if the fee were not paid, and it has not been suggested that it would. Given that the duty to pay arises as part of the application, it is not in my view possible to say, as it was with the failure to provide biometric information, that there is a valid application which is only later invalidated by the failure to pay the fee. Rather, in a case where there is no dispute that the fees are to be paid and should be paid with the application, the failure to do so renders it an invalid application which can be retrospectively validated by a later payment within the grace period. But if the opportunity to make a later payment within the specified period is not taken, the application remains invalid; it does not become invalid at that point in time”.

And:

“In my judgment the position is different where the application to vary leave is combined with an application to be relieved of the payment of fees altogether. I do not think it can sensibly be said that the application for leave, when coupled with such a request, is invalid ab initio and only becomes validated if the relief is granted or when the fees are paid. In my view the application is conditionally valid, i.e. it is valid unless and until an obligation to pay the fee is imposed, following a refusal to grant relief, and the fee is not thereafter paid within the specified period of ten working days. At that point the position is akin to that in which the two appellants in Mirza found themselves when they failed to pay the fees in the specified manner. In Mirza the legislation provided that an application without payment of the requisite fee was “not validly made”. Where there is a failure to pay the IHS, reg.6 provides that that the application “must be treated as invalid”. I see no material distinction in the language used. In my judgment the invalidity would naturally be said to arise at the point where the applicant is no longer able to meet the condition which would ensure the continued validity of the application. It would be unjust to invalidate the application retrospectively, just as Lord Carnwath thought it was with respect to Ms Ehsan. It would have the unsatisfactory consequence that an applicant whose presence was lawful when the application was made might retrospectively be held to have been unlawfully present in the UK at that time. I would not so construe the rules unless compelled to do so”.

The Court held:

“38.For these reasons, I consider that there was a valid application to vary leave, albeit that its continuing validity was conditional on the applicant paying the relevant fees if it should be determined that the appellant was bound to pay them. That would entitle the appellant to rely upon section 3C until the point where the application ceased to be valid. That was when the ten working days had expired after the fee had been requested on 8 November. The relevant date was, therefore, 22 November 2017”.

Paragraph 39E(b)(ii) disregard not applicable as February 2018 application not made within 14days of the rejection of his first application.

As noted above, the appellant had been sent a second letter on 8 November 2017, giving him  further ten working days to pay the Immigration Health Surcharge. He had until 22 November 2017 to make the payment.

In order to rely on  the Paragraph 39E(b)(ii) disregard, the appellant had to show  his  application of February 2018 was made following the refusal of a previous application for leave which was made in-time and within 14 days the expiry of leave extended by section 3C of the Immigration Act 1971 ( ie by of 22 November 2017).

In deciding that the Paragraph 39E(b)(ii) disregard could not be relied upon, the Court  concluded:

“39.The February 2018 application was therefore not made within fourteen days of section 3C extended leave expiring. It follows that the appellant could not rely upon para.39E(b)(ii) in so far as he was seeking to contend that that second application was lodged within 14 days of the expiry of the section 3C period of extended leave. The question is whether the appellant could bring himself within para.39E(2)(b)(i), as he contends”.

The word “application”  includes an invalid application and concept of “refusal”  includes the rejection of an invalid application: February 2018 application fell within the scope of paragraph 39E(2)(b)(i)

In order to satisfy 39E(2)(b)(i), the appellant had to show his application was made following the refusal of a previous application for leave which was made in-time and within 14 days of the refusal of the previous application for leave.

Applying the reasoning below, construing the word “application” so as to include invalid applications, and interpreting the concept of “refusal” as including the rejection of an invalid application,  the Court concluded that the period of 14 days for the purposes of paragraph 39E ran from the date when the appellant was notified that his application had been rejected as invalid, ie on 22 January 2018.

The Court noted that amongst other documents, the Long Residence Policy Guidance expressly stated that the period of overstaying would be calculated from the latest of the following: the expiry of leave, or the expiry of extended leave, or “the point at which the migrant is deemed to have received a written notice of invalidity….in relation to an in-time application for further leave to remain”.

The Court ‘s conclusions at paragraphs 50 to 51 were:

“In my judgment, therefore, although the language in para.39E is potentially ambiguous, any ambiguity utterly dissolves in the light of the obvious purpose of the paragraph and the statements of policy relating to it. I have no doubt that construing the word “application” so as to include invalid applications, and interpreting the concept of “refusal” as including the rejection of an invalid application, reflects the intention of the Secretary of State in adopting the paragraph”.

And:

“Accordingly, in my view the period of 14 days for the purposes of para.39E ran from the date when the appellant was notified that his application had been rejected as invalid, as the Long Residence Policy Guidance indicates. That was on 22 January 2018. It follows that the February 2018 application fell within the scope of para.39E(2)(b)(i). Following Hoque, the whole of the book-ended period of overstaying between 17 July 2017 and 5 September 2019 must be disregarded when calculating whether there is the ten year requisite period of continuous lawful residence. This means that the period of overstaying did not break the continuity and require the period of lawful residence to be started again from scratch. The remaining question, to which I now turn, is whether the period or periods of overstaying can count as part of the ten year period. The period in question in this case is, in my view, from 22 November 2017 when the period of extended leave expired, until 5 September 2019 when fresh leave was granted. But if the period does count, it would not matter if it ran from the 14 July, as the Secretary of State submits”.

Refusal to follow Hoque: disregarded periods of overstaying do not count towards the ten year requirement

From paragraph 52 of its judgement, the Court made the following observations:

  • It is important to keep in mind the two definitions (in so far as they are material to this appeal) in paragraph 276A: “continuous residence means residence in the UK for an unbroken period”; and “lawful residence means residence which is continuous residence pursuant to existing leave to enter or remain”.
  • Paragraph 276B(v) provides that where the conditions of paragraph 39E are met, the period of overstaying is to be “disregarded”. Following Hoque, this means that it is to be disregarded in the two contexts: first, where there is an open-ended period of overstaying because no subsequent leave is granted; and second, where there is a book-ended period of overstaying, because it occurs between two periods of leave.
  • The natural meaning of a period being “disregarded” is simply that one should not to have regard to it; it should be ignored. It is important to note that in paragraph 276B(v) it is not the fact of overstaying which is to be ignored when paragraph 39E is engaged; rather, it is the period of overstaying. That is so with respect to both open-ended and book-ended periods of overstaying.

In observing that the case of Waqar Ali made no reference to Hoque, the following was stated:

  • Waqar Ali was decided after Hoque  although there is no reference to any of the discussion in Hoque; it seems that the case may not have been referred to the court.
  • In Waqar Ali the question was whether an application lodged within the paragraph 39E period of overstaying could be said to be “in time”. The court held that it could not because this meant before leave or extended leave had expired. In that context Simler LJ held that an application made within the 14 day grace period conferred by paragraph 39E was not made within a period of lawful residence (para.36): “On expiry of leave to remain, a person’s residence in the UK becomes unlawful. The fact that such a person is permitted to make an application for leave to remain within a limited period of overstaying does not alter their residence status during that period or render it lawful. It simply means that the SSHD will not refuse such an application on the ground that the person is in the UK in breach of the immigration laws.”

The Court in Afzal considered that this as wholly inconsistent with the notion that the period of overstaying can, in the context of an open-ended period of overstaying at least, count as a period of lawful residence.

In relation to Hoque’s treatment of open-ended period of overstaying and book-ended periods, a further summary was provided:

  • the court in Hoque considered the meaning of “disregarded” in the context of an open-ended paragraph 39E period of overstaying. Underhill LJ, as a matter of construction, held that the open-ended period of overstaying did not, unlike the book-ended periods, qualify in any way the calculation of ten years continuous lawful residence in paragraph 276B(i)(a). Rather it allowed an application to be considered which would otherwise be rejected on the grounds that the applicant was in breach of the immigration rules as an overstayer, even where the applicant had accumulated ten years continuous lawful residence in the past. Underhill LJ said in terms (para.49) that there was “no room for ambiguity” about the meaning of the first sentence in para.276B(v) and that “on no possible reading can it be construed as qualifying the definition of continuous lawful residence”. This was critical on the facts of that case.
  • the applicants in Hoque made an application out of time but satisfying the conditions of paragraph They did not have ten years continuous residence when the application was made, but they would have had by the time the application was refused if the paragraph 39E period of overstay could count towards the ten years. They would then have been entitled to ILR (subject to satisfying the other conditions in paragraph 276B).

In refusing to follow Hoque, the Court in Afzal reasoned:

“66.I do not disagree that it would not have been irrational for the Secretary of State to have allowed the gaps in book-ended periods of overstaying to count. But nor is it irrational for the Secretary of State to take the view that they should not count and that it would not be appropriate to allow periods of overstaying in breach of the immigration rules to be treated for all purposes as if they were periods of lawful residence with the same status as section 3C periods. Underhill LJ appears to have made an assumption that the only way in which the second sentence of para.276B(v) could qualify the concept of continuous lawful residence was by permitting the period of overstaying to count. He does not appear to have considered the alternative possibility that the intended impact on the calculation of ten years’ residence is simply to preclude para.39E periods of overstaying from breaking continuity which, but for para.39E, they would do.

67.The approach of the majority is inconsistent with each of the three preliminary observations which I suggested above should guide the construction of these provisions. First, it significantly distorts the natural meaning of a period being “disregarded” to allow it to count; far from disregarding it, this involves positively having regard to the period of overstaying and treating it for all the world as if it were a period of lawful residence.

68.Second, as Underhill LJ recognised, it is giving the concept of “disregarded” in the context of book-ended periods of overstaying a wholly different meaning from that adopted with respect to open-ended periods of overstaying. If this were a necessary implication, that would be justified. But in my view it is not: the concept of disregard can be given the same meaning in both cases, namely that the period of overstaying is ignored. The significance of this in an open-ended period of overstaying is that the applicant is not to be treated as being resident in breach of the immigration laws. The significance of it in the case of book-ended periods is different because of the focus on past rather than present periods of overstaying; its effect is that when calculating whether there is a continuous period of ten years, a gap resulting from a para.39E period of overstaying will not break continuity. In both cases the period of overstaying is being ignored, but the implications are different in the two situations. This approach, giving the concept of disregard its natural meaning, still allows for a purpose in linking sub-paras. (i)(a) and (v) but it also means that there is no justification for treating the period of overstaying as counting towards the period of continuous residence.

69.Third, this approach re-writes the meaning of lawful residence to include periods not granted pursuant to leave in circumstances where in my view the extension of the definition is not a necessary implication arising out of the linking of the two provisions, as Underhill LJ seemed to assume.

70.We are not bound by the view of the court in Hoque on this point, and for the reasons I have given, I would respectfully not follow it. Whilst I accept that para.39E periods of overstaying do impact upon the question of continuous lawful residence, as the majority in Hoque thought, they do so because they ensure that such periods do not break continuity of residence. But for this provision, continuity would be broken. But it is not expressly stated that they should actively count towards the period of lawful residence, and in my view this is not a necessary implication. The concept of “disregard” in para.276B can be given a perfectly cogent meaning which in my view accords with its natural meaning and does not require the term being deemed to have two different meanings in the same paragraph.

Upper Tribunal decision of Muneeb Asif which followed Hoque was wrong to do so:

The Court noted the appellant’s reliance upon Muneeb Asif, Asif (Paragraph 276B, disregard, previous overstaying) Pakistan [2021] UKUT 96 (IAC), where UT Judge Blum, agreed with the analysis of the majority in Hoque and therefore concluded that the book-ended period of overstaying counted towards the ten year period.

In addition to the authorities, UT Judge Blum also put weight on the version of the Long Residence Guidance published in October 2019 in support of his conclusion that paragraph 39E periods of overstaying count.  He construed the guidance as showing that the Secretary of State was in practice treating paragraph 39E book-ended periods as periods which should count towards calculating the ten year period. He held that in so far as paragraph 276B was ambiguous about the impact of paragraph 39E periods of overstaying, the practice could properly be taken into account to favour a construction which was more favourable to the applicant, following the principle in  Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568;[2013] PTSR D4,  paragraphs 42 to 43 where the justification for the principle, and its limits, are explained.

In summary, the Court’s approach in Afzal included the following:

  • It was not accepted that, when properly analysed, there is any genuine ambiguity as to the proper construction of paragraph 276B when read with paragraph 39E. It was not legitimate to have regard to the guidance when construing the Immigration Rules.
  • Even if the Court was wrong about that, and there is genuine ambiguity, the Court was not persuaded that the guidance itself does supports the proposition that paragraph 39E periods of overstaying should be treated as counting towards the period of long residence.
  • The Court was conscious that if the paragraph 39E period of overstaying cannot count as lawful residence then it may be that it attracts all the disadvantages highlighted by Lord Wilson in Pathan v Secretary of State for the Home Department[2020] UKSC 41[2020] 1 WLR 4506 ( set out in Paragraph 11 of Afzal). That is undoubtedly the case, however, for open-ended periods of overstaying, and in practice it is much less likely that past periods will be of interest to the authorities. However unsatisfactory it may be for this to be the effect of the construction the Court had adopted, the alternative was not a legitimate construction.

In dismissing the appellant’s application for judicial review, the Court concluded at paragraphs 83 and 87:

“For these reasons, therefore, I do not consider that it can be said that the appellant had achieved ten years lawful residence by the date of the Secretary of State’s refusal, even though he will have done so by now or in the very near future. It follows that I would dismiss the application for judicial review”.

And

“For the above reasons, I would grant leave to challenge the decision by way of judicial review but would dismiss the application on the single ground that the appellant had not, by the date of the decision, completed ten years’ continuous lawful residence. There was a gap between 22 November 2017 and 5 September 2019 which, whilst it did not break the period of lawful residence, could not in my view count towards the calculation of the requisite ten years continuous lawful residence. In fact the appellant will have built up that period by now and therefore he is not personally likely to be adversely affected by this decision. But that is not a matter for this court”.

Conclusion:

Whatever the ramifications of Afzal, pending ultimate resolution of the issues in the Supreme Court, clearly yet more litigation/legal challenges will ensue. Afzal does not settle matters after Hoque: rather the recent Court of Appeal decision muddies the waters to some extent( rightly or wrongly) raising quite a few issues in relation to which it is expected the Upper Tribunal will in a separate appeal case seek to grapple with so as to give an interpretation of what they consider is the true effect of Afzal.

The immediate position for now however may seem clear enough: the recent case of Muneeb, Asif (Paragraph 276B, disregard, previous overstaying) Pakistan [2021] UKUT 96 (IAC) in which the Upper Tribunal agreed with the analysis of the majority in Hoque and concluded that the book-ended period of overstaying counted towards the ten year period, seems no longer capable of reliance after Afzal.

 

Early ILR for young adults: widening of criteria to the Concession to include applicants over 25years and refund of NHS Surcharge if early ILR is granted

As of 20 December 2021, there is a second Version of Concession to the family Immigration Rules for granting longer periods of leave and early indefinite leave to remain.  The Concession was only published for the first time two months ago in October 2021 and has already necessitated a second version due to inclusive amendments needing to be incorporated.

A previous blog post analysed the provisions of the Concession after it was published: Young adults (aged 18 or above and under 25 years) and the new early ILR concession: The good and the not so good | UK Immigration Justice Watch Blog

What was the problem with the published Concession before 20 December 2021?

Up until 20 December 2021, the Concession contained an unfair exclusion from a possible grant of early ILR in relation to persons over 25 years of age who had previously applied under Paragraph 276ADE(1)(v) whilst under the age of 25 and been granted leave on that basis.

There seemed no logic to this exclusion and the referred to above blog post of October 2021 drew attention to the inherent unfairness within the newly published Concession as follows:

“Exclusion from ILR under the Concession of applicants now over 25 initially granted leave as young adults:

For some reason it was thought best to introduce a Concession rather than amend Paragraph 276ADE(1).

There are therefore now two different avenues by which young adults can seek to apply for indefinite leave, ie the 10year route via the Immigration Rules or the 5year route via the new Concession.

There seems to be no definition of “young adults” within Paragraph 6 of the Rules however Paragraph 276ADE(I)(v) itself is stated to apply only to applicants aged 18 years or above and under 25 years who have spent at least half of their life living continuously in the UK.

The Concession also requires that applicants for early ILR be aged 18 years or above and under 25 years of age.

On this basis, the Concession seems to exclude from its ambit, those young adults who previously applied under Paragraph 276ADE(1)(v) whilst under the age of 25 but on applying for further leave are now over this age. Such persons however should, absent adverse factors such as criminality, continue to be granted an extension of leave of 30month under the 10year route having regard to Paragraph 276BE(1), which states:

“Leave to remain on the grounds of private life in the UK

276BE(1). Limited leave to remain on the grounds of private life in the UK may be granted for a period not exceeding 30 months provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE(1) are met or, in respect of the requirements in paragraph 276ADE(1)(iv) and (v), were met in a previous application which led to a grant of limited leave to remain under this sub-paragraph. Such leave shall be given subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition”.

The restriction of the relevant eligible group to those aged between 18 and 24 within the concession is calculatedly deliberate. It excludes from its scope many applicants now aged 25 and over who were initially granted leave to remain based on Paragraph 276ADE(1)(v)”.

What are the amendments?

What the initial version of the Concession provided for between 20 October 2021 and 19 December 2021 is as follows:

To be eligible to be considered under the concession, an applicant must (at the date of application):

  • Be aged 18 years or above and under 25 years of age and has spent at least half of his/her life living continuously in the UK (discounting any period of imprisonment);
  • Have either been born in or entered the UK as a child;
  • Have held five years limited leave; and
  • Be eligible for further leave to remain under paragraph 276ADE(1) of the Immigration Rules and have made an application under those rules”.

After some necessary tinkering with the criteria, the Concession now states from 20 December 2021:

“Criteria for all applications made under the concession

This section sets out the criteria an applicant must meet in order to have their application considered under the early ILR concession.

To be eligible to be considered under this concession an applicant must (at the date of application):

  • Be aged 18 years or above and meet the criteria set out in paragraph 276ADE(1)(v) by having spent at least half of his/her life living continuously in the UK (discounting any period of imprisonment) or has met the criteria set out in paragraph 276ADE(1)(v) in a previous application for leave to remain;
  • Have either been born in or entered the UK as a child;
  • Have held limited leave on the basis of family life or private life, for example under Appendix FM, Part 7 or granted outside the Immigration Rules, for a continuous period of five years, disregarding any period of overstaying where paragraph 39E of the Rules applies; and
  • Be eligible for further leave to remain under paragraph 276ADE(1) of the Immigration Rules (or, having previously qualified under paragraph 276ADE(1)(v), be eligible for further leave to remain under paragraph 276BE) and have made an application under those rules”.

Further amendments: how to apply, fee waivers and refund of NHS surcharge if ILR is granted under the concession

The following is included in the Concession:

“How to apply

This is not an application for ILR, so Applicants should use the private life LTR forms. It is not necessary to use a settlement form in order to be considered under this concession. Applicants may use the free text box on the application form to explain any exceptional circumstances relevant to the application that they wish to be considered.

Applicants will be eligible for a fee waiver under the normal arrangements for fee waivers when applying for leave under the private life rules and will not be subject to the public interest factor of financial independence.

Applicants paying the application fee and immigration health surcharge will be refunded the cost of the immigration health surcharge if ILR is granted under the concession”.

Effect of the amendments and some continuing issues in relation to the Concession

Considering that as a result of the amendments more individuals are now eligible to apply for early ILR under the Concession, this is welcome news.

In brief, the effect of the amendments is to include an applicant over the age of 25 who has held a continuous period of 5years limited leave on the basis of family life or private life, or granted outside the Immigration Rules and met the criteria set out in paragraph 276ADE(1)(v) in a previous application for leave to remain and having previously qualified under paragraph 276ADE(1)(v), is eligible for further leave to remain under paragraph 276BE and has made an application under those rules.

The Concession however comes way too late for some young adults who have already accrued 10years lawful residence in the UK by reference to various forms of leave including previous reliance on Paragraph 276ADE(1)(v).

There are also relevant young adults who may be completing or have completed 10years lawful continuous residence in the UK and are due to apply for indefinite leave to remain in any case under the Immigration Rules. Such applicants due now to apply for ILR, may be perfectly able to speak and write English, but for one reason or the other are having difficulty passing the Life in the UK exam. There is no requirement to take the English language test nor life in the UK exam in order to satisfy the criteria of the Concession. Instead of applying for ILR under the Immigration Rules and have that application refused, depending on the circumstances, there may be detailed consideration given to applying instead for an extension of leave under the private life Rules and requesting a grant of ILR under the concession. After all, the new amendment criteria includes that an applicant have met the criteria set out in paragraph 276ADE(1)(v) in a previous application for leave to remain and have previously qualified under paragraph 276ADE(1)(v). Therefore affected applicants unable to pass the Life in the UK test seem able to resolve these difficulties by applying for an extension also relying on the Concession instead of applying for ILR under the Immigration Rules. If the grant of ILR under the Concession is successful, then a refund will be made of the NHS Surcharge.

Applicants are usually expected to apply for further leave to remain no more than 28 days before their extant leave is due to expire, or no more than 28 days before they have completed 30 months in the UK with such leave. All indicators within the Concession are that an application for leave to remain under the private life Rules needs to be made first online and only then will applicability considerations under the Concession take effect: “…..It is expected that eligible individuals will make an application for leave to remain or further leave to remain under the private life rules. Once received, the application will be considered under those rules but with discretion to grant indefinite leave to remain, as opposed to 30 months temporary leave, to those who have already completed five years leave under the appropriate family or private life rules…….. This is not an application for ILR, so Applicants should use the private life LTR forms. It is not necessary to use a settlement form in order to be considered under this concession. Applicants may use the free text box on the application form to explain any exceptional circumstances relevant to the application that they wish to be considered”.

There are individuals on the 10year route to settlement who currently hold a substantial chunk of their 2and half years leave granted under Paragraph 276ADE(1)(v) but already fulfil the criteria under the concession, are experiencing detriment due to not having ILR, yet seem not able to rely on the Concession until they next submit an extension leave application.  For example, a relevant young adult granted leave to remain for 30months under Paragraph 276ADE(1)(v) from May 2021 seems not able to rely on the concession until late 2023 when they submit their extension of leave application.

If indeed as put forward in the Concession the “ concessions aim to provide a shorter route to settlement (5 years) for those who were born in the UK or may have entered as minors and where it is considered inappropriate to expect them to complete 10-years limited leave before reaching settlement either within or outside of the family and private life rules…… The aim of this concession is to prevent an individual, who is eligible for leave under the private life rules and who has been living here continuously since childhood, having to fulfil a period of leave before settlement that is disproportionate in their circumstances”,  then those applicants who already fulfil the criteria, should be permitted to rely upon the Concession at any point whilst they hold limited leave.

Instead of merely limiting themselves to refunding the NHS Surcharge only if early ILR is granted under the Concession, the Home Office should go further; i.e properly flesh out their currently slim guidance that is within the Concession and formulate an application form to be completed online completely free of charge for applicants seeking to rely on the Concession as soon as they consider they fulfil the criteria of the Concession.