June 13, 2014

Article 8: contradictory Court of Appeal decisions?

This is regarding the Court of Appeal decision on Article 8 Haleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558 (02 May 2014). This case concerns long residence and private life in the UK and an argument that the UT was wrong to find an error of law in the determination of the FTT and go on to dismiss the appeal. Beatson LJ gives the judgment of the Court and finds that the FTT was in error for failing to consider the new Article 8 rules. He states:

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

41. The FTT’s decision on Mr Haleemudeen’s Article 8 appeal is contained in [34]-[41], which I summarised and set out in part at [21] – [23] above. Those paragraphs do not refer, either expressly or implicitly, to paragraph 276ADE of the rules or to Appendix FM. None of the new more particularised features of the policy are identified or even referred to in general terms. The only reference to the provisions is in the FTT’s summary (at [30]) of Mr. Richardson’s submission that the reference to the new Rules in the refusal letter was of little relevance because at the time of Mr. Haleemudeen’s application those Rules had not been promulgated and thus did not apply to his case. That submission could not succeed in view of the decision of the House of Lords in Odelola’s case, to which I refer at [25] above.

This was a case where the original application had been made on 28 February 2012 before the new rules were introduced however Beatson LJ relies upon Odelola v Secretary of State for the Home Department [2009] UKHL 25 (20 May 2009) and that the material date was the date of decision. It therefore seems to me (from my brief reading of this case on the bus home!) that the decision in Haleemudeen directly contradicts the recent decision of the Court of Appeal in Edgehill & Anor v Secretary of State for the Home Department [2014] EWCA Civ 402 (02 April 2014) where Jackson LJ found:

Part 5. Executive summary and conclusion

41. Major changes to the Immigration Rules came into force on 9 July 2012. The transitional provisions stated that the new rules would not apply to applications for leave to remain before that date.

42. In both the present cases the appellants applied for indefinite leave to remain under ECHR article 8 before 9 July 2012. The Secretary of State rejected the applications and the tribunals upheld the Secretary of State’s decision.

43. In JE’s case the Upper Tribunal relied upon rule 276ADE (iii) of the new rules (requiring 20 years’ continuous residence) as a consideration materially affecting the decision. Therefore that decision must be quashed and the matter remitted to the Upper Tribunal.

44. In HB’s case both the Secretary of State and the tribunal made reference to rule 276ADE (iii) of the new rules, but they did not rely upon it as a consideration materially affecting the decision. HB’s appeal must be dismissed.

It appears that in Haleemudeen Beatson LJ relies upon Odelola whereas in Edgehill Jackson LJ distinguishes the normal rule in Odelola on the basis of the clear transitional provisions in HC194. It appears that Edgehill is correct because in Odelola Lord Hoffmann states that the rules at the date of decision apply in the absence of any statement to the contrary (paragraph 7). HC 194 provides a clear statement to the contrary which does not appear to have been referred to in Haleemudeen.

More muddy waters in Article 8; let’s hope the Supreme Court comes to the rescue.