Syed, R (on the application of) v Secretary of State for the Home Department

Immigration Rules must be construed and applied according to their natural and ordinary meaning. Section 3 of the Human Rights Act 1998 permits compatible construction where possible, but does not authorise rewriting a Rule to cure an individual Article 8 difficulty.

Article 8 applies independently. The Secretary of State must respect Convention rights when exercising immigration powers within or outside the Rules. A person may fail under the Rules and still require a separate Article 8 assessment.

A ground refused permission below cannot be revived by relying on a partial grant of permission. Both appeals were dismissed.

Mr Syed challenged the refusal of indefinite leave to remain under the long-residence Immigration Rules because two periods lacked leave. The Administrative Court refused permission in [2010] EWHC 2888 (Admin). Limited permission was granted to consider whether Pankina required the Rules to be read compatibly with Article 8.

Mr Patel appealed after the Upper Tribunal dismissed his Article 8 appeal concerning refusal of indefinite leave as a dependent parent. He also sought to revive a paragraph 317 ground on which permission to appeal had been refused below.

The central issues were whether Article 8 required modulation of the Rules and whether the paragraph 317 ground was properly before the Court of Appeal.

Both appeals were dismissed. Mr Syed had no arguable Article 8 claim. The refusal of indefinite leave did not require him to leave the United Kingdom and he later obtained three years’ leave. Mr Patel did not challenge the Upper Tribunal’s conclusion on Article 8. His attempt to revive a paragraph 317 ground was incompetent.

1. Construction of the Rules. The Immigration Rules are made under section 3(2) of the Immigration Act 1971 and articulate immigration policy. They must be given their natural and ordinary meaning. Section 3 of the Human Rights Act 1998 requires compatible construction where possible, but permits modulated construction rather than rewriting a Rule to relieve an individual case. The court treated AM (Ethiopia) [2009] Imm AR 2, MD (Jamaica) [2010] EWCA Civ 213 and Huang [2007] 2 AC 167 as supporting that approach.
2. Article 8. Pankina [2010] EWCA Civ 719 was not inconsistent with AM (Ethiopia). It did not require the wording of the Rules to be altered. It required Article 8 to be respected when the Secretary of State applied the Rules or exercised immigration powers. Article 8 could therefore be protected through action outside the Rules. The court approved the appreciation of Pankina in R (Nough) [2010] EWHC 2218 (Admin), including the possibility that consideration could be deferred until enforcement or removal where appropriate.
3. Mr Syed. The decision challenged was a refusal of long-residence indefinite leave, not a removal decision, and expressly did not require him to leave. His Article 8 rights were not arguably infringed. The construction point was academic on his facts but was addressed because permission had been granted for it.
4. Mr Patel. Permission to appeal to the Upper Tribunal had been refused on the paragraph 317 ground, and no renewal was made. Section 13(8)(c) of the Tribunals Courts and Enforcement Act 2007 prevented that ground being resurrected in the Court of Appeal. A partial grant of permission did not enlarge the appeal.

1. Court of Appeal (Civil Division) Both appeals were dismissed. The court held that the Immigration Rules retained their natural meaning and that Article 8 operated independently of them.
2. Administrative Court Charles George QC, sitting as a Deputy High Court Judge, refused Mr Syed’s renewed application for permission to bring judicial review proceedings. The decision is reported at [2010] EWHC 2888 (Admin) .
3. Upper Tribunal (Immigration and Asylum Chamber) Cranston J and Senior Immigration Judge Gill dismissed Mr Patel’s Article 8 appeal on 18 October 2010.
4. First-tier Tribunal Immigration Judge Sweet dismissed Mr Patel’s appeal under paragraph 317 on 18 May 2010.