MU v Secretary of State for the Home Department

A statement of additional grounds responding to a section 120 notice may be served while an appeal is pending; there is no applicable time limit. Lawful residence may consequently accrue during the appeal, including leave extended by section 3C.

The Long Residence Rules are applications for indefinite leave. Paragraphs 276A1–4 provide a temporary two-year route only for an applicant otherwise eligible for indefinite leave who lacks the required knowledge of English or life in the United Kingdom. They cannot be used to avoid the public-interest requirement in paragraph 276B(ii).

The appellant, a Bangladeshi national, had held student leave since August 2000. His application for leave as a Tier 1 (Post-Study Work) Migrant was refused after he submitted a false postgraduate certificate.

An Immigration Judge dismissed his appeal under the Immigration Rules and declined to consider Article 8. The Upper Tribunal accepted that this was a material error of law and remade the decision. While the appeal was pending, the appellant served a further section 120 statement relying on ten years’ lawful residence. The central issues were whether that ground could be raised at that stage, whether limited leave could be sought under the Long Residence Rules, and whether removal would breach Article 8.

1. The appeal was dismissed under the Immigration Rules and Article 8.

2. The Tribunal accepted that the earlier judge materially erred by declining to deal with the Article 8 claim. An obvious human-rights issue must be addressed even if it has not been fully articulated in the grounds.

3. Following AS (Afghanistan) and NV (Sri Lanka) [2010] EWCA Civ 1076, there was no time limit for service of a further statement of additional grounds in response to a section 120 notice. The appellant could therefore rely on ten years of lawful residence accrued while his appeal remained pending, including statutorily extended leave.

4. The Long Residence Rules did not permit the appellant to seek two years’ limited leave as an alternative means of avoiding the public-interest proviso. Paragraphs 276A1–4 were introduced to assist applicants who otherwise met the requirements for indefinite leave but lacked sufficient knowledge of English or life in the United Kingdom. They did not create a free-standing limited-leave route based solely on long residence.

5. Where the Tribunal becomes the primary decision-maker on a new section 120 ground, it may apply all relevant Immigration Rules. The appellant’s deliberate use of a false certificate was a proper and sufficient public-interest reason to refuse indefinite leave under the Long Residence Rules.

6. Removal was not disproportionate under Article 8. The family were present only temporarily; the wife knew the appellant’s immigration position was precarious when beginning her further course; any separation would be brief; and no serious obstacle to family life continuing in Bangladesh was established.

• Upper Tribunal (Immigration and Asylum Chamber): found a material error in the earlier refusal to consider Article 8, remade the decision, and dismissed the appeal.
• Immigration Judge Munonyedi: dismissed the appeal under the Immigration Rules and declined to consider the Article 8 claim.