FH (Bangladesh) v Secretary of State for the Home Department

This is a renewed application for permission to appeal, permission having been refused on the papers by Laws LJ.

The circumstances are that the applicant arrived in this country as long ago as 10 October 1986. He sought leave to enter as a visitor, was initially granted temporary admission, but on 27 October 1986 he was refused leave to enter and served with a notice to that effect. On 2 November 1986 he was due to report to Terminal 4 at Heathrow as a requirement of his temporary admission, but he failed to attend.

He then went to ground. He changed his name and from that time to this he has remained in this country under his new name, by reference to which he has a National Insurance card and registration for NHS purposes. He also has a bank account in that new identity.

He has worked throughout the period in Indian restaurants. He is presently a restaurant manager. He presents as a person who has lived here, who has behaved himself, who has not committed any criminal offences and who has paid appropriate National Insurance and income tax.

He did nothing to regularise his presence here until 2004, when he made an application under the long-residency rule. It was refused by the Secretary of State, and his appeal was dismissed by an immigration judge in a decision promulgated on 11 January 2008. It is against that decision that he now seeks to appeal.

As I have indicated to Mr McLinden, I intend to grant him permission to appeal. His case before the immigration judge was a case by reference to Article 8 of the ECHR. It may not be the most compelling case in the sense that he does not have an established family life here, the long-term relationship which he had for a substantial part of his time in this country having come to an end. However, the immigration judge accepted that he had established a private life and that Article 8 was engaged. He ultimately rejected the Article 8 claim, saying:

“34…. such a private life was established when he had no lawful right to be here and whilst he was living under a false identity which he had created. No evidence was given by the Appellant that he would face any particular obstacles on his return to Bangladesh. Instead his case was put on the basis because he has been in the U.K. for 21 years he would simply prefer to live here rather than in Bangladesh. I do not find that his personal preference is a matter which is relevant on the question of proportionality.”

That language of “personal preference” may be unfortunate, and Mr McLinden makes submissions to the effect that it was inappropriate. However, that ultimately is not the point. The point sought to be made is that the decision of the immigration judge was legally flawed because he took no account of the long residence concession which existed until 1 April 2003. It was then replaced by what is now Rule 276B of the Immigration Rules. Mr McLinden submits that the applicant’s 14 years of residence in this country crystallised in October 2000 and that from then until April 2003, if he had made an appropriate application, his case would have been considered under the long residence concession. Unlike Rule 276B, the long residence concession does not expressly exclude time spent in this country following service of a notice of liability to removal. Rule 276B(b) contains such a provision; the concession did not contain that provision, at least not in those terms. What the concession provided was for 14 years’ continuous residence “of any legality” normally to give rise to indefinite leave to remain:

“in the absence of any strong countervailing factors, such as:

…

•

deliberate and blatant attempts to evade or circumvent the control, for example by using forged documents, absconding, contracting a marriage of convenience etc.”

That is further amplified by paragraph 4 of the concession and to some extent, albeit addressing a slightly different point, by paragraph 6.

When Laws LJ refused permission he said:

“The AIT was not required to condition its approach to… Art. 8 by reference to [the] long residence rule.”

Mr McLinden seeks to take issue with that approach. He refers to paragraph 8.97 of Macdonald’s Immigration Law and Practice and the authorities referred to in footnotes 6 to 9 to support the proposition that even where someone falls outside a given policy it is incumbent upon a decision maker to consider the rationale or spirit of the policy in order to inform the assessment of what weight should be given to the interests of immigration control when making a judgment on proportionality.

In principle it seems to me that Mr McLinden’s submission is arguable. My initial feeling was that, even though that proposition may be correct, the circumstances of this case are such that it might be held that inevitably there was no material error of law because the way in which the applicant has conducted himself, with his false identity, brought him within the strong countervailing factor of a deliberate and blatant attempt to evade or circumvent control just as much as he would inevitably have fallen into the excluded period under Rule 276B(b). However, I hold back from reaching that conclusion on a permission application because I take the view that it is just about arguable that if an immigration judge had taken the concession into account, then, taking that into account along with the positive points in favour of the applicant, he may have reached a different conclusion when setting them against the negative point of the deliberate and blatant attempt to evade or circumvent control. In other words it may be arguable that the applicant has been denied a proper consideration by the expert tribunal of all the relevant circumstances of the case.

It remains a difficult case for him, not least because he made his applications at a time when the rule had clicked in, after 1 April 2003. He did not make an application when he quite easily could have done at the time when the concession was in force. However, its previous existence, coupled with the fact that time would have permitted an application to have been made on his behalf, is a matter which may have some relevance.

Accordingly, after considerable hesitation I am going to grant permission to appeal. The appeal will be heard by a court of three judges, one of whom may be a High Court judge. The time estimate for the hearing is half a day.