Thomas v Secretary of State for the Home Department

LORD JUSTICE BEATSON: The applicant, Oswald Washington Thomas, applies for permission to appeal against the refusal by the Upper Tribunal to grant his application for permission to apply for judicial review of the decision of the Secretary of State for the Home Department dated 21 May 2013, granting him limited leave outside the Immigration Rules to remain in the UK for a period of 30 months. The leave granted was subject to a condition, which is on his residence card but was not on the notice of his variation of leave, without entitlement to have access to public funds.

The background can be summarised briefly. The applicant entered the UK in 1989 on a six month visitor visa. He subsequently over-stayed and he used false documents to enter and leave the country on, as is recorded in the decision letter, eight occasions. In the course of the years he acquired a university degree. He has generally been in employment and, at the time of the decision challenged, was working at Carillion at Heathrow Airport. Since then, however, he has been unemployed, and was at the time of the decision of the First Tier Tribunal.

At some stage the applicant disclosed what he had done to the authorities and, on 28 December 2011, applied for indefinite leave to remain on the basis of long presence in the country. There are two categories of long presence in the country: long lawful presence and long unlawful presence. Since the applicant relied on a stay of 23 years in the country, he was relying on a stay that was substantially of unlawful residence.

Chronologically, the next material factor was that on 9 July 2012 paragraph 276ADE of the Immigration Rules came into force. That made new provisions for applications made on the grounds of long residence and private and family life.

In a decision dated 15 October 2012 the Secretary of State refused the applicant's application on the grounds that he could not demonstrate ten years' lawful residence in the UK and that, while he might have been in the UK for 14 years or more on an unlawful basis using a false identity, in view of that he should not benefit from the provisions of the Immigration Rules. The letter considered the amendments to the rules in Appendix FM and paragraph 276ADE and concluded that the applicant did not meet the suitability requirements of the rules and, in any event, as he had returned to Jamaica on eight occasions, which were listed in the letter, he had not severed all his ties with his home country so that his application on the basis of his private life was refused.

The First Tier Tribunal, in a determination promulgated on 20 December 2012, dismissed the appeal on the long residence ground, but allowed it on Article 8 grounds. In considering the proportionality of removing the applicant, which was being canvassed at that stage, the Tribunal considered that factors weighing heavily against the applicant in the proportionality assessment included his conduct in relation to the false documents, his use of the NHS and the fact that he did not meet the requirements of the rules. As to the significance of the fact that he had used his false passport to travel in and out of the country on more than half a dozen occasions in 15 years, the FTT stated at paragraph 61 that the conduct was in a different category to the circumstances of cases such as ZH (Bangladesh) [2009] EWCA Civ 8 and Aissaoui [2008] EWCA Civ 37, where the use of false identities in long residence cases was treated as a relatively neutral factor because the vast majority of applicants for long stay leave will have committed such offences. Here the Tribunal considered, on the basis of a decision of the Court of Appeal Criminal Decision in Benabbas [2006] 1 Cr App R (S) 94, that the repeated travelling and out of the country weighed heavily against the applicant in the assessment of proportionality.

After that decision the Secretary of State, on 21 May 2013, made the decision that is challenged in these proceedings. She rejected the application for indefinite leave to remain. She took into account the applicant's history and the circumstances in which he obtained his British documents. She granted the application taking into account Article 8 private life considerations which, she stated, since 9 July were made by reference to the requirements of paragraph 276ADE of the Rules, although this was leave outside the Rules. Accordingly, she granted limited leave to remain outside the rules for a period of 30 months.

After further exchanges between 20 August and 3 October 2013, on 23 October the applicant lodged judicial review proceedings. Those proceedings came before the Upper Tribunal and were considered by an experienced panel consisting of Jeremy Baker J and Upper Tribunal Judge Storey. The applicant contended that the Secretary of State had wrongfully fettered her discretion and that he should have been granted indefinite leave. He also challenged the fact that one of his conditions of leave on a biometric residence card he obtained in July 2013 was that he was not entitled to have access to public funds. Although that second matter had not been a formal ground of challenge, the Upper Tribunal stated it was prepared to consider it.

The Upper Tribunal held that the Secretary of State was entitled to take into account the matters which the First Tier Tribunal considered weighed heavily against the applicant. There was no reason why the applicant should be entitled to be placed in a more favourable position than someone who had qualified for leave to remain within the Immigration Rules under paragraph 276BE. For those reasons it considered that the Secretary of State was entitled not to grant indefinite leave, was entitled to restrict leave to 30 months, and to subject the limited leave granted to a condition of lack of access to public funds.

There are two grounds of appeal to this court. The first is that the Upper Tribunal erred in holding that the Secretary of State was entitled to have regard to the rules that came into force on 9 July 2012, i.e. after his 28 December 2011 application. Secondly, the applicant submits that the Upper Tribunal erred in holding that the Secretary of State was entitled to impose a no recourse to public funds condition on the leave to remain because that constitutes a rule which was not laid before Parliament and which, in the light of the decision of the Supreme Court in Alvi [2012] UKSC 33 is unlawful.

In an order dated 5 December 2014, Lloyd Jones LJ refused permission to appeal on the papers. He stated in relation to ground 1 that the applicant had not identified any respect in which the application of the Immigration Rules which came into force on 9 July 2012 was material. In relation to ground 2 he stated that there was no evidence of any need to access public funds.

Mr Sharma, who appeared this morning and supplemented his succinct written submissions with equally succinct oral submissions, relied on the decisions in Edgehill [2014] EWCA Civ 402 and Singh [2015] EWCA Civ 74 for the proposition that the provisions of the new rules could not be applied to applications pending before they had come into force. Those cases, and the decision of this court in Haleemudeen, concerned the increase in the qualifying period from 14 years to 20 years which came into effect on the rule change.

Mr Sharma submitted that the way in which the application of the change in the rules was material to this application was that, before the amendment, the limited leave that would have been granted would have been three years and not two and a half years. There are downstream consequences of that difference. I take no account of the downstream consequences, but in view of the decisions in Edgehill and Singh, it is right to give leave on this ground. It may be that the decision of this very experienced Upper Tribunal on 26 March 2014 was handed down at a time before those decisions, or very shortly after them as was the position in respect of Edgehill in Haleemudeen, where Edgehill was not cited.

I turn to ground 2. The Alvi point was not expressly addressed in the decision of the Upper Tribunal, no doubt because of the tangential way it arose in this case. As I indicated during the course of argument to Mr Sharma, I consider that the submission that the exercise of discretion outside the rules to grant limited leave, and subjecting it to a requirement that there be no recourse to public funds, constitutes a rule which falls foul of the Alvi principle, faces considerable difficulty. The key element in considering whether a matter falls within the Alvi is whether the document or policy under consideration set out criteria which were or might be determinative of an application for leave to enter or remain. The process of distinguishing documents and policies, the contents of which are rules requiring Parliamentary scrutiny, from other documents and other policies, the contents of which do not so qualify, has, as the burgeoning body of authorities on the point shows, not been straightforward. The formulations in the cases include tests distinguishing provisions reflecting a substantive criterion or criteria from minor matters, substantive requirements and the means of meeting such requirements, and matters, which might affect the ability of an applicant to fulfil criteria: see, for example, the summary I gave in R (Global Vision College) [2014] EWCA Civ 659 at 55 to 56.

It is for these reasons that I find it difficult to characterise a requirement, such as no recourse to public funds, as in the abstract a criteria which is or might be determinative of an application for leave so as to bring it within the Alvi rule. However, Mr Sharma has drawn my attention to the decision of the Upper Tribunal handed down on 5 November 2014 in Fakih [2014] UKUT 513 IAC. That case considered this matter and heard full arguments: see especially paragraphs 37 and following, and the summary, albeit in the context of a different ground, at 96 and 97. Submissions and the considerations similar to those which I have articulated were put on behalf of the Secretary of State by Mr Zane Malik of counsel but those submissions were rejected by Upper Tribunal Judge O'Connor. It therefore appears that different constitutions of the Upper Tribunal Immigration and Asylum Chamber have taken a different approach to this particular question. It is therefore appropriate for the matter to be considered in an appeal before this court. Accordingly, I also grant permission on ground 2.

The case should be heard by a three-judge court, one member of which may be a first instance judge, one member of whom should have significant experience in immigration law. As to the time estimate, subject to any submissions by Mr Sharma, I consider that half a day should be sufficient for these points to be explored fully. Accordingly, this application is granted.