BG (Jamaica) v Secretary of State for the Home Department

This is an appeal by the Secretary of State in an immigration matter. The respondent is a Jamaican born on 12 February 1987. He came to the United Kingdom on 28 July 2000, when he was aged 13, as a dependant of his mother who had been granted leave to be here. The respondent and his mother were granted extensions of leave over the years. The latest extension of leave for the respondent expired in February 2013. Before that, on 25 January 2013 the respondent and his mother applied for a further extension of leave to remain.

The respondent's application was for leave to remain under the Immigration Rules; alternatively, for leave to remain granted outside the Rules on the basis of his rights under the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights. His mother was granted an extension of her leave to remain, but by a decision letter dated 12 April 2013 the respondent's application was refused.

The respondent appealed to the First-tier Tribunal ("FTT"). The FTT held that the respondent satisfied the requirements for leave to remain set out in paragraph 276ADE of the Immigration Rules and therefore allowed his appeal. It did not examine his alternative claim under Article 8.

Paragraph 276ADE sets out the requirements in the Rules to be met to be granted leave to remain on the grounds of private life in the United Kingdom. So far as relevant, it provides at subparagraph (v) that at the date of application the applicant "is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK".

At the time the respondent made his application he was aged 25 and was a little less than a month away from his 26th birthday. Although he was 25 and not "under 25 years", the judge in the FTT held that he satisfied the requirements of paragraph 276ADE.

The Secretary of State appealed to the Upper Tribunal. The judge in the Upper Tribunal dismissed the appeal, saying that there had been no error of law by the FTT.

The Secretary of State now appeals to this court. She says that the requirement set out in paragraph 276ADE is clear and that the respondent clearly did not satisfy it. The point in issue is this very short point on the construction of paragraph 276ADE.

In my view, despite the best efforts of Mr Adenekan, who appeared for the respondent, the Secretary of State's submission is unanswerable. I regret to say that I think the FTT and Upper Tribunal judges were wrong. By no stretch of language or the imagination could it be said that the respondent was "under 25 years" of age at the time he made his application.

Accordingly, I would allow this appeal and remit the respondent's case to the FTT for it to consider whether he is entitled to be granted leave to remain outside the rules on the basis of his rights under Article 8. It is not necessary to decide another point made by the Secretary of State, namely that the respondent also failed to satisfy paragraph 276ADE because he could not show that at the time of application he had spent at least half his life in the United Kingdom, although I observe that as a matter of simple arithmetic that also appears to be correct.

I agree.

I also agree.