BB (Algeria), R (on the application of) v Secretary of State for the Home Department

The appellant, Benchoucha Belgacem (“the Appellant”), appeals against the decision of the Upper Tribunal, in a determination promulgated on 26 March 2013, dismissing his appeal against the decision of the Respondent (“the Secretary of State”) dated 2 August 2012 to remove him from the UK. The Secretary of State had previously determined in a decision dated 31 March 2011 that he did not, as at that date, qualify for leave to remain on the grounds of continuous residence (14 years) under what was paragraph 276B of the then current Immigration Rules (HC 365). I shall refer to the Immigration Rules as they stood up to 8 July 2012 as "the old Rules".

The Secretary of State’s decision was upheld by the First-tier Tribunal (“the FTT”) on the Appellant’s appeal, but an apparent error of law in the FTT’s determination led to the case being reconsidered by the Upper Tribunal. The Appellant appeals to this court against the Upper Tribunal’s decision pursuant to permission granted by Maurice Kay LJ on an oral renewal.

The Appellant is an Algerian national, born on 8 November 1968. He entered the United Kingdom illegally and used false documents to obtain a National Insurance number. On 21 February 2011 he applied for indefinite leave to remain in the UK on the basis of: (i) long (albeit unlawful) residence pursuant to the old Rules, claiming to have entered the UK on 31 December 1996; and (ii) his right to respect for his private life under Article 8 of the European Convention on Human Rights (“ECHR”). The application was rejected by the Secretary of State on 31 March 2011. The principal reason for the rejection of the application was the Appellant’s failure to provide any (or any adequate) evidence to demonstrate that he had lived continuously in the UK for 14 years as required by paragraph 276B of the old Rules.

On 13 June 2011 the Appellant’s solicitors made further representations to the Secretary of State to reconsider the Appellant’s application. On 26 August 2011, the Appellant’s further representations were rejected.

On 13 June 2012 new Immigration Rules were promulgated by the Secretary of State pursuant to a Statement of Changes in the Immigration Rules (HC 194). These came into force on 9 July 2012. I shall refer to these new Immigration Rules incorporating the changes made by HC 194 as “the new Rules”. The material provisions of paragraph 276B of the old Rules were effectively replaced by paragraph 276ADE of the new Rules. Paragraph 276ADE provides (amongst other things) that at least 20 years continuous residence are required to support an application of the type made by the Appellant for leave to remain in the UK on the grounds of his private life. The new Rules also contained certain transitional provisions which were the focus of argument on this appeal. I set out the detailed provisions of the new Rules below.

On 2 August 2012 the Secretary of State notified the Appellant of his liability to be removed from the UK. Unlike the earlier decision refusing his application for indefinite leave to remain, the decision to notify the Appellant of his liability to be removed was an appealable decision pursuant to the Nationality, Immigration and Asylum Act 2002.

On 6 August 2012 the Appellant lodged his appeal to the FTT. His statement of additional grounds reads as follows:

“1.

The applicant applied for infinite [sic] leave to remain in the UK as a long residence [sic] after 14 years’ continuous residence.

2.

The appellant came to the UK on 31 December 1996 and have [sic] since remained living in the UK.

3.

The Home Office acted contrary to the provisions of the Immigration Rules in coming to the refusal decision. The respondent overlooked the relevant facts and omitted material considerations in reaching the decision to refuse the application.”

On 5 September 2012 a further Statement of Changes to the Immigration Rules (HC565) was promulgated which took effect on 6 September 2012. I will refer to the changes effected by HC565 as “the HC565 changes”. I set out details of the relevant provisions below.

The Appellant’s appeal to the FTT was heard on 2 October 2012. There were two aspects to the appeal. First, the Appellant asserted that he had indeed lived in the UK since 31 December 1996 and the Secretary of State had been wrong to conclude otherwise. Second, he contended that removal would breach his Article 8 rights to respect for his private life.

The appeal was dismissed on 9 October 2012. The FTT concluded that the Appellant had failed to prove his presence in the UK prior to August 1998. Accordingly, the Secretary of State had been correct to determine that he had not accumulated 14 years residence at the time she made her decision. The material conclusion of the FTT concerning the Appellant’s length of residence was expressed at §§32-33 of its judgment in the following terms:

“The first document I find I can rely upon is the letter from the Department of Social Security dated 19 August 1998.

Accepting that the appellant had been in the United Kingdom from that date, or even a few weeks beforehand when he made his application for a national insurance number would mean that at the time of his application on 21 February 2011 he had been in the United Kingdom for 12 ½ years and not the 14 years required under paragraph 276B(i)(b) of HC395.

....

On the evidence before me upon which I can rely, I do not find that the appellant proves that he was in the United Kingdom prior to August 1998 and that therefore he does not prove that he had been present for the required minimum period of 14 years at the time of his application to the respondent.”

Although the FTT did not identify a specific date on which the Appellant’s continuous residence began, the Upper Tribunal proceeded on the basis that “the earliest date on which the appellant could have been in this country”, given the findings of the FTT, was 1 August 1998. For the purposes of this appeal, Mr Neil Sheldon, counsel for the Secretary of State, was content to adopt 1 August 1998 as the start of the Appellant’s continuous residence in the UK.

As to the Appellant’s claim under Article 8, the FTT concluded that the disruption that removal would cause to the Appellant’s private life (no family life having been established in the UK) was not disproportionate to the legitimate aim of the maintenance of fair and firm immigration control.

The Appellant appealed to the Upper Tribunal. The appeal was heard on 15 February 2013 and the Upper Tribunal’s decision promulgated on 26 March 2013. The Upper Tribunal determined that there had been an error of law in the determination of the FTT in that the latter had wrongly approached the question whether the decision of the Secretary of State was in accordance with the old Rules by calculating the Appellant’s length of residence in the UK from his date of arrival (1 August 1998) to the date of the Secretary of State’s decision (31 March 2011). The Upper Tribunal accepted that the proper approach should have been to calculate the period of continuous residence up to the date on which the Secretary of State gave the Appellant notice of his liability to removal, i.e. 2 August 2012.

Having identified that error of law, the Upper Tribunal went on to consider whether that error was material to the outcome of the appeal. The Upper Tribunal concluded that the error could not have been material for the reasons which it gave in §§14 -15 of its judgment, where it said:

“14.

On the judge’s findings, this appellant was not present in the UK before August 1998. Accordingly, he could not have qualified under the 14 year residence provision which existed before the Rules were changed on 9 July 2012. After that date, there was no equivalent rule on which the appellant could rely.

15.

Applying the Rules as they were on 1 August 2012, the earliest date on which the appellant could have been in this country for a continuous period of fourteen years (on the basis of Judge Bryant’s findings), his application could not then have succeeded under the Rules. There is no transitional provision which could assist him either. At the time when the respondent made the removal decision on 2 August 2012, this decision was in accordance with the Rules then in force, and by that date the appellant had not previously acquired any rights to remain under Rules previously in force. This application could not have succeeded under the Rules, either when it was made (because the appellant had not then been present for fourteen years) or at any time after he had been present for fourteen years, because by that time the Rules had been changed. There was no time at which the appellant could have made an application which could have been successful, and the transitional provisions do not assist someone whose claim could not succeed simply because the Rules had changed before he had acquired any rights under the old Rules to remain.”

The Appellant sought permission to appeal to the Court of Appeal. His grounds, as advanced to the Upper Tribunal and (at least initially) to the Court of Appeal, were concerned principally with an attempt to adduce fresh evidence in support of his asserted date of arrival in the UK. However, that evidence could have been obtained with reasonable diligence prior to the FTT hearing, and, in those circumstances, permission on that ground was refused by Christopher Clarke LJ on 27 February 2014. Christopher Clarke LJ also said:

“There was no error of law. There was never a moment when the 14 year rule was in force and the appellant had accumulated 14 years residence. After it ceased to be in force there was no rule on which the appellant could rely. Further the First Tier Tribunal had not taken jurisdiction before the rule was abolished, namely 9 July 2012.”

The Appellant renewed his application on different grounds. In a skeleton argument dated 9 May 2014 the Appellant advanced the argument that, at the time he was given notice of his liability to removal (2 August 2012), he had been, on the FTT’s findings, in the UK for one day in excess of 14 years. That being so, and in accordance with the transitional provisions contained in HC 194, he submitted that his case fell to be determined under the old Rules (and paragraph 276B in particular) in force at the time he made his application.

At an oral hearing on 15 May 2014, Maurice Kay LJ granted permission to appeal limited in the following terms:

“Permission to appeal is granted in relation to the point concerning Rule 276B and the scope of the Transitional Provisions to the new Immigration Rules.”

As Mr Sheldon for the Secretary of State submitted, and as I accept, the effect of the limited grant of permission is that the finding of the FTT that the Appellant’s continuous residence in the UK did not start until August 1998 stands. There was also no challenge to the FTT’s conclusion that the Appellant’s removal would be proportionate for the purposes of Article 8 of the ECHR in circumstances where he had not satisfied the 14 years continuous residence requirement.

It was common ground that it is for the Secretary of State to decide and to lay down rules as to the practice to be followed in the exercise of immigration control. Her power to do so derives from section 1(4) of the Immigration Act 1971 (“the 1971 Act”): see R (Munir) v Secretary of State for the Home Department [2012] 1 WLR 2192. The procedure for making rules and/or any changes to those rules is governed by section 3(2) of the 1971 Act.

As explained by Lord Hoffmann in Odelola (FC) v Secretary of State for the Home Department [2009] 1 WLR 1230 (“Odelola”), at §§6-7, the Immigration Rules are not subordinate legislation; they constitute a statement by the Secretary of State as to how she will exercise powers of control over immigration. However, they are more than merely statements of policy in that they create legal rights, including a right of appeal under sections 82 and 84(1) of the Nationality, Immigration and Asylum Act 2002 if a decision is taken otherwise than in accordance with the Rules.

As I have already stated, the Appellant made his application for indefinite leave to remain on 21 February 2011, and it was decided by the Secretary of State on 31 March 2011. The old Rules in force at the time of both application and determination provided, in material part, as follows:

"Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i)

(a) he has had at least 10 years continuous lawful residence in the United Kingdom; or

(b)

he has had at least 14 years continuous residence in the United Kingdom, excluding any period spent in the United Kingdom following service of notice of liability to removal or notice of a decision to remove by way of directions under paragraphs 8 to 10A, or 12 to 14, of Schedule 2 to the Immigration Act 1971 or section 10 of the Immigration and Asylum Act 1999, or of a notice of intention to deport him from the United Kingdom; and

(ii)

having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:

(a)

age; and

(b)

strength of connections in the United Kingdom; and

(c)

personal history, including character, conduct, association and employment record; and

(d)

domestic circumstances; and

(e)

previous criminal record and the nature of any offence of which the person has been convicted; and

(f)

compassionate circumstances; and

(g)

any representations received on the person's behalf; and

(iii)

the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application."

On 13 June 2012 the Secretary of State laid before Parliament a Statement of Changes in Immigration Rules (HC 194) in the manner required by section 3(2). In addition, the relevant provisions were expressly debated in both Houses, as well as being examined by the Secondary Legislation Scrutiny Committee in the House of Lords as explained by Lord Hope in R (Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208 at §35.

On 9 July 2012 the material provisions of the new Rules came into force.

The new Rules contained certain implementation and transitional provisions set out at the beginning of the Statement of Changes HC 194. These stated as follows:

“Implementation

With the exception of paragraphs 6 to 72, 74 to 80, 82, 86, 88 to 90, 93, 97, 98, 100, 102, 103 and 106 [not material for present purposes] the changes set out in this Statement shall take effect on 9 July 2012. Paragraphs 6 to 72, 74 to 80, 82, 86, 88 to 90, 93, 97, 98, 100, 102, 103 and 106 shall take effect on 1 October 2012.

However, if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012." (Emphasis added.)

I shall refer to this second paragraph as "the implementation provision”.

The new provisions applicable to applications for leave to remain on the grounds of private life in the UK, and which are material for the purposes of this appeal, were contained in paragraph 276ADE of the new Rules and provided as follows:

“Private life

Requirements to be met by an applicant for leave to remain on the grounds of private life

276ADE. The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i)

does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 1.5 in Appendix FM; and

(ii)

does not fall for refusal under any of the grounds in Section S-LTR 1.6 to 2.3 in Appendix FM; and

(iii)

has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(iv)

is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment); or

(v)

is aged 18 years or above and under 25 years and has spent at least half of his life residing continuously in the UK (discounting any period of imprisonment); or

(vi)

is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.

In considering applications under this paragraph, the Secretary of State shall attach less weight to private life in the UK established following refusal of an earlier application for leave to remain made under paragraph 276ADE."

As I have already stated, on 6 September 2012 the HC 565 changes came into effect. They contained no equivalent to the implementation provision. For present purposes the relevant paragraphs are A277B and A277C and they provided as follows:

"A277B. Where the Secretary of State is considering an application for indefinite leave to remain to which Part 8 of these rules continues to apply (excluding an application from a family member of a Relevant Points Based System Migrant) and where the application does not meet the requirements of Part 8 for indefinite leave to remain or limited leave to remain:

(a)

the application will also be considered under paragraphs R-LTRP.1.1.(a), (b) and (d), R-LTRPT.1.1.(a), (b) and (d) and EX.1. of Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) of these rules;

(b)

if the applicant meets the requirements for leave under those paragraphs of Appendix FM or paragraphs 276ADE to 276DH (except the requirement for a valid application under that route), the applicant will be granted leave under those provisions; and

(c)

if the applicant is granted leave under those provisions, the period of the applicant's continuous leave under Part 8 at the date of application will be counted towards the period of continuous leave which must be completed before the applicant can apply for indefinite leave to remain under those provisions.

A277C. Subject to paragraphs A277 to A280 and paragraph GEN.1.9. of Appendix FM of these rules, where the Secretary of State is considering any application to which the provisions of Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) of these rules do not already apply, she will also do so in line with those provisions."

Pursuant to the limited grant of permission by Maurice Kay LJ, the issue raised on this appeal may be stated in the following terms: was the Appellant entitled after 9 July 2012 (when the new Immigration Rules came into effect) to continue to accrue continuous residence for the purposes of the 14 year rule contained in paragraph 276B of the old Rules up until the date of the notification of his liability for removal on 2 August 2012 with the result that the FTT should have concluded, on the basis of the unchallenged facts as found by it, that he had indeed achieved 14 years continuous residence by that date in accordance with the old Rules? Or put another way, can the Appellant say that the Secretary of State’s removal decision on 2 August 2012 was not in accordance with the law or the old Rules, as by that date he had accrued 14 years continuous residence in the UK for the purposes of the old Rules? The issue necessarily involves a consideration of the effect, if any, of the implementation provision contained in the new Rules on the ability of the Appellant to rely upon the 14 years continuous residence rule contained in paragraph 276B of the old Rules after the coming into effect of the new Rules on 9 July 2012.

Mr Christopher Jacobs, counsel on behalf of the Appellant, submitted that the Upper Tribunal erred in finding that the Appellant could not succeed under Rule 276B of the old Rules. On the basis of the findings of fact as made by the FTT, which had not been challenged, he submitted that the Appellant had established the requisite 14 years’ continuous residence for the purposes of that rule by 1 August 2012 and prior to 2 August 2012 when the Secretary of State issued her removal direction. In support of this contention he submitted:

Mr Sheldon, on behalf the Secretary of State, submitted that the appeal against the decision of the Upper Tribunal was fundamentally misconceived and should be dismissed. He submitted that the transitional provisions upon which the Appellant sought to rely did not have the effect for which he contends. The effect of the transitional provisions, as explained by this Court in Edgehill, was limited to preserving the effect of the old Rules in long residence cases in which the application had yet to be determined, and in which the effect of the old Rules would have led to a different outcome had they been applied to the application in question.

In the Appellant’s case, his application for leave to remain had been determined well in advance of the coming into force of the new Rules, and there was no application outstanding at the time the new Rules came into force on 9 July 2012. In the premises, the general principle established in Odelola applied, namely that the application fell to be determined in accordance with the Rules as they stood at the date of decision, and both the FTT and the Upper Tribunal were correct to determine the case on that basis.

It is not necessary to rehearse the more detailed submissions advanced by Mr Sheldon since they are reflected in my discussion of the issues.

In Odelola the House of Lords clearly established the principle that, absent an express transitional provision which provides otherwise, immigration decisions are to be taken by the Secretary of State in accordance with the Immigration Rules in force at the time the decision is made. In that case, the applicant, a citizen of Nigeria who entered the United Kingdom for a two-month clinical attachment, undertook a further clinical attachment and received confirmation that the basic training she had received was, in the view of the United Kingdom’s Postgraduate and Medical Education and Training Board, “acceptable”. She subsequently applied for leave to remain as a postgraduate doctor, enclosing the appropriate fee. At the time of her application the Statement of Changes in Immigration Rules (2005) (HC 299), which had been laid before Parliament by the Home Secretary pursuant to section 3(2) of the Immigration Act 1971, was in force. Under the Rules there set out, a person who had only an overseas medical degree was, subject to other requirements including registration with the General Medical Council, eligible to apply for an extension of leave as a postgraduate doctor or dentist. After the date of her application, but before that application was determined, those Rules were replaced by the Statement of Changes in Immigration Rules (2006) (HC 1016) under which a person could not have leave to enter or remain in the United Kingdom as a postgraduate doctor or dentist unless he had completed a recognised United Kingdom degree in medicine or dentistry from a United Kingdom institution. The Secretary of State refused the application. On the applicant’s appeal, the immigration judge held that the Secretary of State had been right to apply the rules in force at the time the decision was made and that the applicant had no right to have her application decided according to the rules in force at the time of her application. The Asylum and Immigration Tribunal and the Court of Appeal upheld his decision. The House of Lords dismissed the applicant’s appeal. In dismissing the appeal, the House of Lords held that the Immigration Rules were merely an indication of how at any one time the Secretary of State intended to exercise her discretion with regard to the grant of leave to enter or remain and, therefore, essentially statements of administrative policy; that, consequently, an applicant had no vested right to have her application determined in accordance with the rules in force at the time the application was made; that, however, as a matter of fairness, the presumption against retrospectivity could apply to the Immigration Rules, even if no vested right was involved; that whether the presumption applied to the rules in force at any one time was a matter of impression; that, on that basis, it was clear that changes in Immigration Rules took effect whenever they said they came into effect so that, unless there was a statement to the contrary, new rules came into immediate effect and applied to all leave applications, whether pending or yet to be made; that the natural meaning of the language of HC 1016 was that it came into immediate effect and extended to current applications; that, therefore, the Secretary of State had been correct to consider the applicant’s application for leave to remain under HC1016; and that, accordingly, the applicant’s application could not succeed.

Lord Hoffmann articulated the proposition that, absent an express transitional provision which provides otherwise, immigration decisions are to be taken by the Secretary of State in accordance with the Immigration Rules in force at the time the decision is made, at §§ 4-7 of his opinion as follows:

“4.

Like any other question of construction, this depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy. The language of the rule is not in itself much help. It states the new rule but does not say anything expressly one way or the other about whether it is to apply to existing applications or not.

5.

There was a good deal of argument about whether the rules attract a presumption (either under the Interpretation Act 1978 or the common law) that they are not intended retrospectively to take away vested rights. But, as Lord Rodger of Earlsferry pointed out in Wilson v First County Trust Ltd [2004] 1 AC 816 at p. 880, such arguments are usually circular. If a vested right means a right which will not be construed as taken away except by express language, then an appeal to the presumption only transfers the argument to the question of whether you have a vested right.

6.

The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under section 84(1) of the Nationality, Immigration and Asylum Act 2002, one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules. So there is no conceptual reason why they should not create rights which subsequent rules should not, in the absence of express language, be construed as removing. The question is whether, on a fair reading, that is what they do.

7.

In my opinion, if one looks at the function of the rules, they should not be so construed. They are, as I have said, a statement by the Secretary of State as to how she will exercise powers of control over immigration. So the most natural reading is that (in the absence of any statement to the contrary) they will apply to the decisions she makes until such time as she promulgates different rules, after which she will decide according to the new rules. That was the understanding of the Divisional Court in R v IAT ex p Nathwani [1979-80] Imm AR 9. If new rules are intended to apply only to applications made after they come into force, they expressly say so, as they did in paragraph 4 of the Immigration Rules 1994 (HC 395).”

To similar effect, Lord Brown said at §§38-39:

“38.

In my opinion the truer analogy is with planning law and practice which requires that all applications are determined in accordance with whatever policies are in force at the time the decisions are taken.

39.

Standing back, therefore, from the detail and addressing, as Lord Mustill proposed in L'Office Cherifien [1994] 1 AC 486, 525H "a single indivisible question, to be answered largely as a matter of impression", I have no doubt that the changes in the immigration rules, unless they specify to the contrary, take effect whenever they say they take effect with regard to all leave applications, those pending no less than those yet to be made.

The opinions of the remaining Law Lords were to like effect.

A further useful statement in this context was made by Dyson LJ (as he then was) in his judgment in MD (Jamaica) & Anor v Secretary of State for the Home Department [2010] EWCA Civ 213 at §22 (with whom Sir Mark Potter P and Longmore LJ agreed):

“22.

Mr Gill did not develop orally a further submission which he advanced in his skeleton argument. This is that para 276B(i)(a) should be disapplied in so far as it applies to periods of residence prior to its introduction on 1 April 2003. In my judgment, he was right not to develop the retrospectivity argument for a number of reasons. It is sufficient to refer to the House of Lords decision in Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 1 WLR 1230, in which it was made clear that immigration rules are merely an indication of how, at any one time, the Secretary of State intends to exercise his or her discretion and are therefore essentially statements of administrative policy. Consequently, an applicant has no vested right to have his application determined in accordance with the rules in force at the time the application was made: see also per Laws LJ in LL (China) v Secretary of State for the Home Department [2009] EWCA Civ 617 at [19]. Changes in immigration rules take effect whenever they say that they take effect, unless there is a statement to the contrary. There is no such contrary statement in para 276.” (My emphasis.)

In the present case, and contrary to Mr Jacobs’ submissions, I see no basis for construing the relevant Immigration Rules, whether the old Rules in force prior to 9 July 2012 or the implementation provision contained in the new Rules, as conferring any kind of vested, or other, right on the Appellant entitling him successfully to contend that, in hearing his appeal on 2 October 2012, against the removal direction dated 2 August 2012, the FTT should have concluded that, because he had accrued 14 years continuous residence in the UK by 1 August 2012:

In the first instance I approach the question without consideration of this court’s judgment in Edgehill upon which Mr Jacobs placed so much reliance.

It appeared to be common ground on the arguments before us that, had the old Rules not changed, the Appellant would have been entitled to have relied on his continued residence in the period following the date of the Secretary of State’s decision refusing his application for indefinite leave to remain on 31 March 2011 up until the date of the removal decision on 2 August 2012, as a qualifying period for the purposes of the 14 year residence requirement under the old Rules, and thus would have been entitled to have made, or notionally to have made, a further application, as at 1 August 2012, for indefinite leave to remain on the basis of such continuous residence.

But that was not the position here. By the time that the Appellant had completed 14 years continuous residence on 1 August 2012, the old Rules had changed - and, from 9 July 2012 (as at which date the Appellant had not satisfied the 14 years continuous residence requirement), the continuous residence requirement was 20 years rather than 14. Moreover no further application was in fact made by the Appellant on 1 August 2012 for indefinite leave to remain. Had he done so, he would have been met by the answer that the new Rules required a 20 years continuous residence. I see no reason why any “notional application", as discussed in argument by counsel, which was never made, should be treated any differently.

Nor, in my judgment, can the Appellant obtain any assistance in support of his argument from the language or the presumed intent of the implementation provision of the new Rules. The implementation provision contained in the new Rules provides that if an application made before 9 July 2012, “for entry clearance, leave to remain or indefinite leave to remain” has not been decided by 9 July 2012, it should be “decided in accordance with the rules in force on 8 July 2012”. But, as Mr Jacobs accepted, and indeed asserted, the Appellant’s case was not a transitional case. His application for indefinite leave to remain had already been decided, and refused, by the Secretary of State on 31 March 2011, well before the new Rules came into force, and in accordance with the old Rules as they stood at that time. The decision of the Secretary of State taken in March 2011 to refuse the application for indefinite leave to remain cannot be characterised as a decision otherwise than one made “in accordance with the Rules”.

Nor, in my judgment, could it be argued by the Appellant (and indeed Mr Jacobs did not seek to articulate his submissions in this way) that the language or intent of the implementation provision somehow required UKBA to take its removal decision on 2 August 2012 on the assumed basis: (i) that the old Rules in force on 8 July 2012 continued to apply; and (ii) that theoretically, on 1 August 2012, the Appellant could have made a second application for indefinite leave to remain on the basis of 14 years continuous residence. The transitional savings contained in the implementation provision are not directed at removal decisions. They are directed at decisions in relation to entry clearance, leave to remain or indefinite leave to remain where applications have been made before 9 July 2012 but have not been decided as at that date. In my judgment, there is nothing in the language or intent of the implementation provision, which mandates or entitles a decision maker in relation to a removal decision to revisit a valid earlier decision taken by the Secretary of State prior to 9 July 2012 and under the old Rules in force prior to 9 July 2012, to refuse indefinite leave to remain. A removal decision is not a decision that, as a matter of interpretation of the implementation provision, is covered by its terms. And of course it was the removal decision, as the relevant immigration decision, that was the subject of the appeal to the FTT in this case pursuant to section 82(2)(h) of the Nationality, Immigration and Asylum Act 2002. The Secretary of State’s decision dated 31 March 2011 refusing indefinite leave to remain afforded no such right of appeal, as her letter of that date clearly stated.

Nor do I accept that there is anything in the implementation provision (or anything else) which supports Mr Jacobs’ argument that, despite the fact that the Appellant’s application for indefinite leave to remain had already been decided in March 2011, the Appellant retained some sort of vested right to continue to accrue continuous residence up until the date of the removal decision in order to satisfy the requirements of the old Rules, notwithstanding that by that date they were no longer in force. Not only is the implementation provision restricted in its application, expressly and directly, to decisions in relation to applications made before 9 July 2012 for “entry clearance, leave to remain or indefinite leave to remain” which have yet to be decided as at that date, but it says nothing from which it could be implied that such a provision imposes some sort of stay on the application of the new Rules so as to enable applicants to spend time “improving” their applications under the old Rules, after the decision has been taken by the Secretary of State to refuse indefinite leave to remain.

As Mr Sheldon submitted, the Appellant’s argument, on analysis, is that the effect of Rule 276B should be frozen so as to allow his period of continuous residence to catch up with the requirements of an old Rule which was no longer in force at the time when he satisfied its requirements. He has already made one unsuccessful application under the old Rules, but now wishes to be treated as though he had notionally made another application on 2 August 2012 and to have the old Rules applied to that further application.

The Appellant did not qualify under the old Rules until after the new Rules had come into force. In that respect, the Appellant’s position was weaker than that of the unsuccessful applicant in Odelola, who, at the time when she made her application, had indeed qualified under the old rules then in force. I conclude that there is nothing in the implementation provision to assist an applicant in a situation such as that of the Appellant. In ZH (Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 8, Sedley LJ described the 14-year rule set out in Rule 276B(i)(b) as “in effect an amnesty clause”. But the reality in the present case is that the ‘amnesty clause’ on which the Appellant seeks to rely was withdrawn before he achieved qualification for that amnesty.

Mr Jacobs sought to rely on Edgehill & Anor v Secretary of State for the Home Department [2014] Imm. A.R. 883 in support of his argument that the analysis of the Upper Tribunal was wrong. But I do not consider that either the facts of the two applications under consideration in that case, or the ratio of the decision itself, assist his argument.

The facts in Edgehill relating to the 2 appellants require some analysis. The following summary is taken from the judgment of Jackson LJ, with whom Laws and Black LJ J agreed:

“JE

12.

JE is a Jamaican national, now age 45, who came to the UK on 14^th September 1998. She was granted leave to remain as a student for a limited period. On 22^nd August 2011 she applied for a right of abode in the UK on the grounds of ancestry, alternatively for indefinite leave to remain under ECHR article 8. By letter dated 7^th March 2012 the Secretary of State refused that application. JE appealed to the First-tier Tribunal. In relation to her article 8 claim, JE relied upon the fact that she had lived in the UK for many years and she had children in this country. By a decision dated 21^st June 2012 the First-tier Tribunal dismissed both limbs of JE's appeal.

13.

JE appealed to the Upper Tribunal on the article 8 issue. By a decision dated 11^th February 2013 the Upper Tribunal dismissed her appeal. In relation to JE's length of residence the Upper Tribunal stated as follows:

"31.

In considering her length of residence in the UK we have regard to paragraph 276ADE of the Immigration Rules (as amended). That paragraph came into force on 9 July 2012, that is after the date of the immigration decision and the hearing in the First-tier Tribunal. However, Article 8 appeals are decided on the facts as at the date of the hearing and, whilst this was a decision made before the new Rules came into effect and therefore have no direct application and not retrospective, we consider it appropriate to give weight to the new Rules as being an expression of the legislature's views as to where the public interest lies.

32.

Paragraph 276ADE of the amended Immigration Rules sets out the requirements to be met by an applicant for leave to remain on the grounds of private life in the UK. The relevant provision is paragraph 276ADE (iii) which provides that the applicant must show that s/he;

(iii)

has lived continuously in the UK for at least 20 years (discounting any period of imprisonment);…

33.

The appellant in this case has established that she has lived in the UK continuously for over 14 years. This period of residence is less than the 20 years provided in the new Rules as establishing a right to remain in the UK on the basis of private life. The appellant's period of residence would not therefore be enough to found a claim under the current Immigration Rules."

14.

JE is aggrieved by the Upper Tribunal's decision and appeals to the Court of Appeal. Her essential argument is that the Upper Tribunal erred in placing reliance on rule 276ADE of the new rules, since those rules are expressly disapplied in respect of applications for leave to remain made before 9^th July 2012.

HB

15.

HB is a citizen of Mauritius, now age 52, who came to the UK on 8^th December 2003. Originally she had leave to enter as a visitor. Thereafter she was given leave to remain for a number of years as a student. On 23^rd December 2011 HB applied for leave to remain on the basis of ECHR article 8. She asserted that she, her husband and her adult children had established a private and family life in this country. They had lived here for eight years and had fallen out with all of their relatives in Mauritius.

16.

The Secretary of State refused HB's application under article 8. HB appealed to the First-tier Tribunal. After hearing oral evidence the First-tier Tribunal rejected the contention that HB and her husband had broken off contact with their family members in Mauritius. They had lived in Mauritius for most of their lives and still had ties to that country. The tribunal held that HB's family life would not be disrupted if she went back to Mauritius, because the family would return as a unit.

17.

The tribunal accepted that HB and her family had a private life in this country. Nevertheless interference with the rights to private life of HB and her family would be justified and proportionate to the aim of effective immigration control. Accordingly the First-tier Tribunal dismissed HB's appeal.

18.

In reaching their decisions both the Secretary of State and the First-tier Tribunal expressly placed reliance on rule 276ADE of the new rules. As noted in Part 1 above, rule 276ADE (iii) specifies 20 years' residence in the UK as one of the means of making out a claim to remain on the grounds of private life in the UK.

19.

HB appealed against the First-tier Tribunal's decision to the Upper Tribunal on the ground that the First-tier Tribunal failed to carry out a proper balancing exercise as required by ECHR article 8.2. The Upper Tribunal dismissed that appeal.

20.

HB now appeals to the Court of Appeal on two grounds. The first ground is the same as that advanced by JE. The second ground is that the First-tier Tribunal and the Upper Tribunal erred in holding that HB and her husband have no ties with Mauritius.

21.

The sole issue in JE's appeal and the principal issue in HB's appeal is whether it is lawful to reject an article 8 application made before 9^th July 2012 in reliance upon the applicant's failure to achieve 20 years residence, as specified in the new rules. I must now turn to that issue.”

The first point to make is that the issue as articulated by Jackson LJ which the Court of Appeal had to decide was “Is it lawful to reject an article 8 application made before 9 July 2012 in reliance upon the applicant’s failure to achieve 20 years’ residence, as specified in the new rules?” He answered that question in the negative. For present purposes the relevant paragraphs of his judgment as to why he reached this conclusion are the following:

“28.

Since the Immigration Rules are not formal legislation, either primary or secondary, this affects the approach to construction. In Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48 Lord Brown summarised the correct approach to construing the Immigration Rules as follows at paragraph 10:

"The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy."

29.

Aided by this guidance, I now return to the central issue in the two current appeals. Mr Bourne submits that applications made under article 8 before 9^th July 2012 did not fall under any of the Immigration Rules, either old or new. The decision maker simply had to apply article 8, taking into account the wealth of guidance provided by Strasbourg and the domestic courts.

30.

The next stage in Mr Bourne's argument is that appellate tribunals make article 8 decisions by reference to the current state of affairs, not by reference to the state of affairs when the Secretary of State reached her decision. In both of the present cases the current state of affairs included new rule 276ADE, providing a requirement for 20 years' continuous residence.

31.

I admire the dexterity of this argument. Nevertheless it produces the bizarre result that the new rules impact upon applications made before 9^th July 2012, even though the transitional provisions expressly state that they do not do so.

32.

The Immigration Rules need to be understood not only by specialist immigration counsel, but also by ordinary people who read the rules and try to abide by them. I do not think that Mr Bourne's interpretation of the transitional provisions accords with the interpretation which any ordinary reader would place upon them. To adopt the language of Lord Brown in Mahad, "the natural and ordinary meaning of the words, recognising that they are statements of the Secretary of State's administrative policy," is that the Secretary of State will not place reliance on the new rules when dealing with applications made before 9^th July 2012.

33.

Accordingly, my answer to the question posed in this part of the judgment is no. That answer is subject to one important qualification. A mere passing reference to the 20 years requirement in the new rules will not have the effect of invalidating the Secretary of State's decision. The decision only becomes unlawful if the decision maker relies upon rule 276ADE (iii) as a consideration materially affecting the decision.

34.

Having addressed the central question of principle, I must now reach decisions in the two cases under appeal.

A contrary reading of the same implementation provision was given by this court in Haleemudeen v Secretary of State for the Home Department [2014] Imm. A.R. 1087, ("Haleemudeen") which was decided two weeks after Edgehill. However, the court in that case was apparently neither referred to the implementation provision nor to Edgehill.

On 12 February 2015, another division of this court handed down its decision in Singh v Secretary of State for the Home Department and Khalid v Secretary of State for the Home Department [2015] Imm A.R. 704 (“Singh”). The first of two issues to be decided in that case was which was correct – Edgehill or Haleemudeen? The court held that Edgehill was to be preferred, although Arden LJ had some qualifications to make which are not material for present purposes. As Aikens LJ said in the further case of R (Islam) v The Secretary of State for the Home Department [2015] EWCA Civ 312 (“Islam”), at [23],wemust therefore follow the latest decision of this court on the topic, viz. Singh, and so follow the decision in Edgehill. At §56 of his judgment in Singh, Underhill LJ summarised his conclusions in relation to the issue as to whether the new Rules should have been applied in the two applications before the court in that case (both of which were applications where the application for indefinite leave to remain under the old Rules (in the case of Singh) and the applications under Article 8 (in the case of both Singh and Khalid) were made under the old Rules before 9 July 2012 and the relevant decisions refusing leave to remain were made after 6 September 2012:

“CONCLUSION ON ISSUE (A)

56.

The foregoing analysis has regrettably been somewhat dense, but I can summarise my conclusion, and the reasons for it, as follows:

(1)

When HC 194 first came into force on 9 July 2012, the Secretary of State was not entitled to take into account the provisions of the new Rules (either directly or by treating them as a statement of her current policy) when making decisions on private or family life applications made prior to that date but not yet decided. That is because, as decided in Edgehill, "the implementation provision" set out at para. 7 above displaces the usual Odelola principle.

(2)

But that position was altered by HC 565 – specifically by the introduction of the new paragraph A277C – with effect from 6 September 2012. As from that date the Secretary of State was entitled to take into account the provisions of Appendix FM and paragraphs 276ADE–276DH in deciding private or family life applications even if they were made prior to 9 July 2012. The result is that the law as it was held to be in Edgehill only obtained as regards decisions taken in the two-month window between 9 July and 6 September 2012.

(3)

Neither of the decisions with which we are concerned in this case fell within that window. Accordingly the Secretary of State was entitled to apply the new Rules in reaching those decisions.

57.

I should observe that both the decisions with which this Court was concerned in Edgehill were made after 5 September 2012, i.e. outside the window referred to above. It follows that, although its reasoning about the effect of HC 194 was, I believe, correct, the outcome would have been different if it had been referred to the changes introduced by HC 565 – which it was not. Mr Blundell acknowledged that that was so when the point was put to him in the course of his submissions. That is rather remarkable. It appears that one of the (admittedly many) objects of HC 565 was to "clarify" that the provisions of Appendix FM and paragraphs 276ADE–276DH should apply to pending applications; yet in a case which raised that very issue the Secretary of State neglected to rely on it…”

However, contrary to Mr Jacobs’ submissions I do not consider that the ratio in Edgehill predicates a conclusion in the present case that the Upper Tribunal were wrong to reach the conclusion which they did. My reasons may be summarised as follows.

The first point to make is that, contrary to the position in the present case, the relevant decision in question in Edgehill (so far as JE was concerned) was in fact the decision of the Upper Tribunal made on 11 February 2013 on JE’s Article 8 appeal, i.e. after the implementation of theHC 565 changes. The court appears to have accepted the submission that the implementation provision applied to such a decision, notwithstanding that it was not an application under the old Rules, because the Article 8 application necessarily involved an application for indefinite leave to remain; see §§ 24-26 and 29-33 of Jackson LJ’s judgment. But there is (not surprisingly) no suggestion that the Secretary of State considered the new Rules in making her decision on 7 March 2012. So, despite what appeared to be the common assumption of counsel in argument before us, the reality is that Edgehill was approached by the court as a truly transitional case - i.e. a case where the application was made before 9 July 2012 and the relevant decision was made after that date. That such was the position is made clear by Underhill LJ’s analysis of the decision in Edgehill at paragraph 57 of his judgment in Singh, which I have already quoted above. So far as the position in relation to HB is concerned, the judgment does not reveal the date on which the Secretary of State refused her application under Article 8. But again, the clear inference is that the relevant decision in relation to which the Court of Appeal regarded the implementation provision as applying was that of the Upper Tribunal after the introduction of the new Rules; see § 57 of Underhill LJ’s judgment in Singh, which necessarily proceeds on the basis that that decision was made after 6 September 2012.

In contrast, the present case was not a transitional case. There was no entitlement to appeal against the Secretary of State’s decision made in March 2011, namely that the Appellant had not established the relevant period of continuous residence under the old Rules, and no basis upon which such decision could be faulted; on the facts as found by the FTT there had been no acquisition by the Appellant of 14 years continuous residence under the old Rules by that date. The relevant decision in relation to indefinite leave to remain under the old Rules had been made by that date. The removal decision, in relation to which the Appellant did have a right of appeal under section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002, was made after that date on 2 August 2012. But, as at that date there was no outstanding application for indefinite leave to remain which had been made prior to 9 July 2012, and so the implementation provision simply did not come into play. In my judgment, in those circumstances the UKBA decision taker, who made the removal decision on 2 August 2012, was clearly entitled to rely on the previous decision of the Secretary of State, taken in March 2011 in accordance with the old Rules, when coming to his/her decision that a removal direction should be made. This was simply not a case (contrast the position in Edgehill) where, as at the date of the introduction of the new Rules, there was an outstanding application for indefinite leave to remain, made before 9 July 2012, which as at that date had not yet been decided, or was regarded as having not been decided, on the grounds that it was subject to the decision of the FTT or the Upper Tribunal.

The first date on which the Appellant in the present case could have made an application for indefinite leave to remain under the Rules on the basis of his 14 years continuous residence was 1 August 2012. Even if it were appropriate to assume that a notional application had been made on that date - and I see no realistic basis for such an assumption - the fact is that, as at that date, he could not have satisfied the requirements of the Rules then in force, namely the new Rules, which by then required 20 years continuous residence. Moreover, even if, contrary to my analysis, one has to assume that there was some sort of outstanding application for indefinite leave to remain, in existence as at the date of introduction of the new Rules, there was in fact no Rule in force prior to 9 July 2012 which would have had a material bearing on the outcome of the Appellant’s case or which would have entitled him to indefinite leave to remain. On the established findings of the FTT he did not accrue 14 years continuous residence until 1 August 2012, and so, at whatever point prior to 9 July 2012 his application for indefinite leave to remain under the old Rules might have been determined, it would have been refused.

By way of contrast, so far as the applicant, JE, in Edgehill was concerned, any consideration of her Article 8 rights prior to 9 July 2012, before the material provisions of HC 194 came into force, might have resulted in a different outcome. As the court held, the Secretary of State, or the FTT or Upper Tribunal reviewing the former’s decision, might well have considered it material to take into account, in the Article 8 determination, the fact that the applicant was approaching the 14 years continuous residence requirement required under the old Rules. But the present case, certainly by the time it arrived at the Upper Tribunal, was principally a case based on the Rules. There was by that stage no effective challenge to the FTT’s adverse determination of the Appellant’s Article 8 claim, which was clearly premised on the fact that he had spent some 14 years in the UK and did not contain any inappropriate reference to, or base any inappropriate reliance upon, the twenty-year continuous residence requirement in the new Rules.

Moreover, if one were to adopt the approach apparently taken in Edgehill and endorsed in Singh, it is the date of the decision of the Upper Tribunal which is critical for the purposes of establishing whether the factors which the Secretary of State, or the Court exercising its discretion in her place, can take into account in the Article 8 determination include, or do not include, the twenty-year continuous residence requirements of the new Rules. In the present case if, which I do not think it is, it were appropriate to adopt this approach, the relevant decision is that of the Upper Tribunal dated 26 March 2013. As Underhill LJ pointed out in Singh at §56, by this date the new Rules were subject to theHC 565 changes and there was no obligation on the Upper Tribunal to have regard to the implementation provision. (In fact the position would be the same in the present case if one were to take as the relevant date that of the determination of the FTT, namely 9 October 2012.)

For the above reasons, I would dismiss the Appellant’s appeal in relation to the issue in respect of which permission has been granted. The Appellant did not meet the requirements of the old Rules in force at the time he made his application, nor did he meet those requirements at the time the Secretary of State decided his application in March 2011. He only met the requirements of the old Rules after the new Rules had come into force. At no point in the chronology of his case could he have made an application for leave to remain which met the requirements of the Rules in force at the time the application was made or at the time at which such application was decided. Accordingly the decision of the Upper Tribunal was correct in substance for the reasons which it gave. Even if, contrary to my analysis, one has to assume that such application was decided by the FTT or the Upper Tribunal in their respective decisions, then, since their determinations post-dated theHC565 changes, they were not required to take into account the transitional provisions of the implementation provision.

Accordingly I would dismiss this appeal.

I agree.

I also agree.