MD (Jamaica) & Anor v Secretary of State for the Home Department

The requirement of ten years’ continuous lawful residence under the Immigration Rules HC 395 bears its plain meaning. Lawful residence is exhaustively defined by paragraph 276A(b). A later grant of leave does not retrospectively legalise residence after earlier leave expired.

Policy concessions cannot alter the construction of the Rules, although the de minimis principle may excuse a truly insignificant lapse, such as an application made one day late. Gaps lasting several weeks are not insignificant.

On an immigration appeal, post-decision factual evidence may be considered under section 85(4) of the Nationality, Immigration and Asylum Act 2002. The legality of the original decision must nevertheless be judged by the Rules and published policy applicable when it was made, rather than by later policy.

Two appellants sought indefinite leave to remain after residing in the United Kingdom for more than ten years. Each had, however, remained without leave for several weeks between the expiry of existing leave and an application for further leave. The Secretary of State refused both applications under paragraph 276B(i)(a) of the Immigration Rules HC 395.

The Asylum and Immigration Tribunal ultimately dismissed both appeals. MD also contended that refusal disproportionately interfered with her private life under article 8 of the European Convention on Human Rights. GE relied on guidance issued after the decision refusing his application.

The Court of Appeal considered whether short periods of overstaying could count as continuous lawful residence, whether MD’s article 8 assessment was legally flawed, and whether GE could rely on the later guidance.

1. Both appeals dismissed. Dyson LJ, with whom Longmore LJ and Sir Mark Potter agreed, held that paragraph 276B(i)(a) of the Immigration Rules HC 395 should receive its plain and ordinary meaning.

2. The definition of lawful residence in paragraph 276A(b) is exhaustive. Its use of “means”, followed by three specified categories, precludes additional categories. A grant of leave made after earlier leave expired does not retrospectively legalise residence during the intervening period. Such an effect would require express words or necessary implication, neither of which existed.

3. The former long residence concession was irrelevant to construing the Rule. The Rule prescribed the requirements governing the discretionary grant of indefinite leave, whereas the concession explained when breaches might exceptionally be treated as lawful for policy purposes. It mitigated the Rule’s rigour but did not alter its meaning.

4. The strict construction produced no absurdity. The de minimis non curat lex principle could address a truly insignificant delay, such as an application submitted one day late. It could not save gaps of two and seven weeks in MD’s residence or GE’s 38-day gap.

5. MD’s article 8 challenge failed. The immigration judge had recognised her private life, lengthy residence and good character. He was entitled to find that the limited evidence of social and economic ties did not outweigh the public interest in maintaining immigration control, particularly given her substantial earlier life and family connections in Jamaica.

6. Section 85(4) of the Nationality, Immigration and Asylum Act 2002 allowed the tribunal to consider later evidence relevant to the substance of an immigration decision, including current factual circumstances. It did not permit the legality of the decision to be judged by Rules or policy issued after that decision. GE therefore could not rely on the April 2009 guidance when challenging the November 2008 refusal. In any event, his anxiety about his research project was unlikely to constitute the extenuating reason required by that guidance.

1. Court of Appeal (Civil Division): Both appeals were dismissed unanimously: [2010] EWCA Civ 213.

2. Asylum and Immigration Tribunal—MD: An immigration judge initially allowed MD’s appeal. Reconsideration was ordered, an error of law was identified, and following full reconsideration the appeal was dismissed.

3. Asylum and Immigration Tribunal—GE: An immigration judge dismissed GE’s appeal. Following an order for reconsideration, a senior immigration judge held that the original determination contained no error of law and ordered that it stand.