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

Under the 14-year long-residence rule, prolonged unlawful residence is a neutral gateway condition. It cannot then be counted against the applicant when deciding whether indefinite leave would be undesirable in the public interest. Countervailing public-interest factors must justify refusal.

Unlawful work or use of a false identity may be relevant, but neither carries predetermined or decisive weight. The circumstances and purpose of the conduct must be assessed fairly.

Immigration Directorate Instructions neither have the force of law nor assist in construing the Immigration Rules. Nevertheless, an immigration judge must consider material guidance brought to the tribunal’s attention, and the Home Office must explain any divergence from its published policy.

A Bangladeshi national who had remained in the United Kingdom after his visitor’s leave expired applied for indefinite leave under paragraph 276B of the Immigration Rules. The immigration judge accepted that he had completed 14 years’ continuous residence but refused his appeal on public-interest grounds, relying on his unlawful work, use of an alias and alleged efforts to evade detection.

A senior immigration judge found no error of law on reconsideration. The appellant appealed on grounds including procedural unfairness, misconstruction of the long-residence rule and failure to determine his alternative case under paragraph 395C.

The central issues were how unlawful residence and related conduct should be assessed under paragraph 276B(ii), and what significance the tribunal should give to the Home Office’s published Immigration Directorate Instructions.

1. The appeal was allowed unanimously. The immigration judge’s determination was vitiated by errors of law. The case was remitted to a differently constituted Asylum and Immigration Tribunal for reconsideration on its merits.

2. Paragraph 276B(i)(b) is directed to people who have accumulated at least 14 years’ residence without lawful authority. The unlawful nature and qualifying duration of that residence are neutral gateway conditions. They cannot be counted again as public-interest reasons for refusal under paragraph 276B(ii). Once the evidence has been heard, the practical inquiry is whether countervailing reasons make a grant of indefinite leave undesirable despite the applicant’s prolonged evasion of immigration control.

3. The immigration judge materially mischaracterised the evidence by finding that the appellant had moved repeatedly over great distances to avoid detection. The unchallenged evidence was that he moved when employers who had engaged him without a National Insurance number replaced him. The judge also failed to distinguish using an alias to avoid detection as an overstayer from using a false identity to commit fraud. A false identity may be relevant, but the rule gives it no predetermined or decisive weight.

4. MO (Ghana) [2007] UKAIT 00014 should no longer be cited in paragraph 276B(i)(b) appeals, even as persuasive authority. Its treatment of unlawful residence and false identity risked making the rule operate against the people whom it was intended to benefit. The approach in Aissaoui [2008] EWCA Civ 37 was applied.

5. Immigration Directorate Instructions do not possess the force of law and are not aids to construing the Immigration Rules. Nor may they operate as surrogates for the rules. Nevertheless, material guidance has a legitimate bearing on adjudication. Where guidance is drawn to the tribunal’s attention, the presenting officer should be prepared to explain any divergence between the Home Office’s case and its published policy. Government must have good reason to act inconsistently with its own policy.

6. The overlap between paragraphs 276B and 395C meant that the immigration judge had substantively addressed both provisions. Any decision under paragraph 395C could not realistically have differed on these facts. Although an applicant bearing the burden under paragraph 276B should ordinarily have an opportunity to address matters from which adverse inferences may be drawn, the court did not determine the appeal on that procedural ground because remission was already required for substantive errors.

1. Court of Appeal (Civil Division): Allowed the appeal in [2009] EWCA Civ 8, held that the initial determination contained errors of law, and remitted the case to a differently constituted Asylum and Immigration Tribunal.

2. Asylum and Immigration Tribunal—reconsideration: Senior Immigration Judge Chalkley found no error of law in the initial determination.

3. Asylum and Immigration Tribunal—initial appeal: Immigration Judge Ferguson accepted that the appellant had completed 14 years’ continuous residence but upheld the refusal of indefinite leave under paragraph 276B.