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

On a renewed application for permission to appeal, the Court of Appeal held that it was arguable that an Article 8 proportionality assessment should take account of the possible relevance of a former long-residence concession, even though the concession had been replaced by Rule 276B. A policy may assist in assessing the weight given to immigration control, including where an applicant falls outside its express terms. The court did not finally decide that issue. It was sufficient that proper consideration of the concession, alongside the applicant’s positive circumstances and deliberate use of a false identity, might have produced a different outcome. Failure to consider all potentially relevant circumstances could therefore amount to an arguable material error of law. Permission to appeal was granted.

The appellant entered the United Kingdom in 1986, was refused leave to enter, failed to report as required, changed his name and remained in the country. In 2004 he applied under the long-residency rule. The application was refused and an immigration judge dismissed his appeal on 11 January 2008. The judge accepted that he had established a private life engaging Article 8, but rejected the claim on proportionality grounds.

Permission to appeal was refused on the papers by Laws LJ. On renewal, the appellant argued that the tribunal had failed to consider the former long-residence concession, which had operated until 1 April 2003, and which might have informed the assessment of immigration control. The central issue was whether that omission was arguably a material legal error.

Disposition. The renewed application for permission to appeal was granted. The court did not determine the substantive Article 8 appeal.

1. The immigration judge’s reference to the appellant’s preference to remain in the United Kingdom might have been unfortunate, but that was not the decisive issue. The arguable complaint was the failure to consider the former long-residence concession when assessing proportionality.
2. The former concession provided that 14 years’ continuous residence of any legality would normally lead to indefinite leave to remain in the absence of strong countervailing factors. Those factors included deliberate and blatant attempts to evade or circumvent immigration control. The concession did not expressly exclude time following service of a notice of liability to removal in the terms now found in Rule 276B(b).
3. It was arguable in principle that, even where an applicant fell outside a policy, its rationale or spirit might inform the weight given to immigration control in an Article 8 proportionality assessment. The court left that proposition open.
4. Although the appellant’s use of a false identity was capable of constituting a strong countervailing factor, the court could not conclude at the permission stage that consideration of the concession would inevitably have made no difference. The tribunal might have balanced that factor against the positive circumstances relied upon by the appellant and reached a different conclusion.
5. The appeal was therefore sufficiently arguable. It was directed to be heard by three judges, one of whom might be a High Court judge.

• Court of Appeal (Civil Division) — On 23 September 2008, Lord Justice Maurice Kay granted the renewed application for permission to appeal.
• Court of Appeal (Civil Division) — Laws LJ had refused permission to appeal on the papers.
• Asylum & Immigration Tribunal — An immigration judge dismissed the appellant’s appeal against refusal of his long-residence application; the decision was promulgated on 11 January 2008.