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

In an Article 8 private-life appeal, the length and quality of residence must be considered. An applicant who cannot satisfy the long-residence requirements cannot require the rationale or spirit of the Immigration Rules to carry additional weight in the proportionality balance. Culpable and undue administrative delay may reduce the weight given to immigration control, particularly where it prevents consideration under an applicable extra-statutory concession. An error is material where timely consideration might have produced a different outcome. Certainty of success is unnecessary. Decision-makers assessing evasion and false identity should distinguish avoidance of immigration detection from fraud.

The appellant, a Bangladeshi national, arrived in the United Kingdom in 1986, absconded after refusal of leave to enter, and lived under a false identity for nearly 18 years. His application for indefinite leave to remain based on long residence was refused. The Asylum and Immigration Tribunal dismissed his appeal on reconsideration on 11 January 2008, after an earlier determination had been set aside because of a hearing mix-up.

He accepted that he had no family-life claim but argued that removal would disproportionately interfere with his private life. The Court of Appeal considered whether the Tribunal had erred by treating delay as irrelevant and by failing to account for an extra-statutory long-residence concession that remained in force until March 2006.

1. Disposition. The appeal was allowed unanimously. The extant decision of the Asylum and Immigration Tribunal was quashed and the case was remitted for further reconsideration.
2. Original ground. The appellant could not satisfy paragraph 276B of the Immigration Rules because the clock-stopping provision excluded the relevant period after removal directions. The Immigration Judge had nevertheless considered the actual length and quality of residence. It was therefore not legally erroneous to decline to give additional weight to the rationale or spirit of the Rules and the former concession in the Article 8 proportionality assessment.
3. Delay and the concession. The Immigration Judge erred at paragraph 33 by finding that no policy or rule could have benefited the appellant if the application had been decided earlier. The extra-statutory concession continued after the 2003 Rules were introduced and was not withdrawn until March 2006. The appellant was therefore entitled, at least until 1 March 2006, to consideration under the concession as well as the Rules.
4. Materiality. The two years and nine months taken to decide the application amounted to culpable and undue delay. Applying the approach in Secretary of State for the Home Department v Rashid [2005] EWCA Civ 744 and EB(Kosovo) v Secretary for the Home Department [2008] UKHL 41, such delay could reduce the weight given to firm and fair immigration control. The Secretary of State should have decided the application substantially earlier, and timely consideration might have produced a different result.
5. False identity and evasion. The concession still involved strong countervailing factors, including deliberate evasion of immigration control. However, the approach in ZH(Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 8 required the decision-maker to distinguish evasion intended to avoid detection as an illegal immigrant from use of a false identity to commit fraud. The proportionality outcome was not inevitable, but a favourable outcome was at least possible. The matter was accordingly remitted.

• Court of Appeal (Civil Division) — [2009] EWCA Civ 385: allowed the appeal, quashed the AIT’s extant decision and remitted the case for further reconsideration.
• Asylum and Immigration Tribunal — dismissed the appeal on 11 January 2008 on reconsideration. An earlier determination dated 28 February 2007 had been affected by a hearing-time and venue mix-up, leading to reconsideration.