Ml (Zambia) v Sectretary of State for the Home Department

This is an appeal, with leave, against the decision of Immigration Judge Blair-Gould promulgated on 12 September 2007. Proceedings have a relatively long history. The appellant is a citizen of Zambia who arrived in the United Kingdom on 7 September 1986. He was granted leave to enter as a student. Leave was extended from time to time. It expired on 30 September 1995. Before its expiration he made an application for further extension which was refused by the Secretary of State on 11 March 1996. There was an appeal to an adjudicator and then to the Immigration Appeal Tribunal at that time. Leave to appeal was refused on 31 October 1997.

On 1 July 2003 the appellant, who remained in this country, applied for indefinite leave to remain on the grounds of his long residency in the United Kingdom. The Secretary of State refused his application in November 2004 and the appellant then appealed. His appeal was heard by Immigration Judge Malins -- Mrs CJW Malins -- and her decision was promulgated on 22 August 2005. Before her, the only issues were: 1) was the appellant entitled to take advantage of the fourteen-year continuance residency concession? And 2): should he be allowed to remain, because a refusal to allow him to remain would be an unlawful interference with his rights under Article 8?

The adjudicator dismissed the appeal under both heads. There was then an application for reconsideration of his decision pursuant to section 103A of the Nationality and Immigration and Asylum Act 2002. The Senior Immigration Judge rejected reconsideration on both of the grounds that have been argued before Mrs Malins. However, somewhat unusually, he granted leave on the basis that Mrs Malins could have considered -- and indeed should have considered -- whether it was open to the appellant to succeed on the basis of the ten years’ lawful residence concession.

His order stated that leave is granted on the narrow basis as to whether the immigration judge erred in law in her consideration of the ten-year aspects (paragraph 276, which is the ten-year rule). The appellant was somewhat fortunate in that order for reconsideration, but, be that as it may, that was the basis on which reconsideration was ordered. It was at that reconsideration which came before Immigration Judge Blair-Gould at the end of August 2007, and resulted in his determination promulgated on 12 September 2007. The only issue before him, as a result of the reconsideration order which is dated 1 September 2005, was the application of the ten-year rule. That was recognised in the appellant’s skeleton argument which, in its first paragraph, recited the last paragraph of the Reconsideration Order.

At the stage at which the skeleton was prepared, which is dated 20 August 2007, it would appear that it was not then known what the attitude of the Secretary of State to the ten-year rule argument was. When the matter came before Immigration Judge Blair-Gould at the end of August 2007 there was agreement between the representatives of the appellant and of the Secretary of State that the original decision had contained a material error of law, presumably that the ten-year rule did in fact justify leave to remain.

The immigration judge, however, was not happy with that concession, and paragraph 1 of his determination states that at the outset of the hearing of the appeal he was told that the parties had agreed that the immigration judge had made a material error of law and that the appeal should be adjourned for reconsideration. I expressed my doubt about the correctness of this but was wrongly persuaded about it and said that the appeal would therefore be adjourned for reconsideration.

At the end of the hearing before Immigration Judge Blair-Gould, he expressed himself as having been persuaded that the appellant could indeed rely on the ten-year rule. He did not make a formal decision then, and handed down his decision later. As I said, it was promulgated on 12 September 2007. When he came to consider the facts and the application of the immigration rules, he came to the conclusion that the view he had expressed at the end of the hearing was incorrect; that the consensus of the representatives of the parties before him was incorrect and, in fact, the appellant was not entitled to rely on the ten-year rule.

Leave to appeal was given against that decision on the basis that the appellant may have, in consequence, been the subject of some injustice. It is certainly the case that, where argument is cut short by a judge in the course of a hearing on the basis that he accepts the arguments of one side or the other or both, generally speaking, if, on reflection, he comes to a different view, justice requires that he inform the parties of his provisional change of mind and invites further submissions. Different considerations arise, however, where the provisional decision of the judge is announced after full submissions. In those circumstances there will normally be no such an injustice.

The first question which arises in this case is whether anything additional could have been said or should have been said by the representative of the appellant before Immigration Judge Blair-Gould in relation to the issues that were properly before him. It is at this point that the difficulties of the appellant begin. It is accepted on his behalf that the decision on the ten-year rule, which is made by the immigration judge, was correct as a matter of law. The only matters that could have been put forward on behalf of the appellant, therefore, which might have resulted in a different decision on the part of the immigration judge, are matters outside the scope of the reconsideration which had been ordered on 1 September 2005.

Immigration Judge Blair-Gould could not properly have considered those matters. They were not matters which had been remitted to him by the order of 1 September 2005. It may well be that there are matters which the Secretary of State could and should consider in deciding, at this point of time, whether it is right to require the appellant to leave. He may be able to make a fresh claim on the basis of his continued presence in this county and his family life. His rights under Article 8 may be engaged, but none of those matters were before the immigration judge in August and September 2007 and could not have been before him. It follows that it is impossible to see that there was any injustice caused by any omission or failure to raise those matters, and it is significant that none of them were raised in the skeleton argument before the immigration judge -- a skeleton argument which, as I have said, would appear to have come into existence before it was known that the Secretary of State would accept the argument put forward on behalf of the appellant on the ten-year rule.

The second and even greater difficulty of the appellant is that the immigration judge’s decision was correct as a matter of law, so that even if there were other arguments that could have been put forward to him on the issue that was before him they ought not to have succeeded. It cannot be said that the issue of law -- and it was only an issue of law -- should have been decided differently, and it is conceded it could not have been. In those circumstances it seems to me impossible to say that there was any injustice, and certainly not any material injustice, suffered by the appellant. I would dismiss this appeal.

I agree.

I also agree.