Paul Zanoto Pembele v Secretary of State for the Home Department

“Valid leave” in paragraph 399(b)(i) of the Immigration Rules means leave to enter or remain under the Immigration Act 1971. It does not include temporary admission. A period of temporary admission cannot therefore be counted towards the required 15 years’ continuous residence with valid leave, even if the person was lawfully present in a restricted sense.

An explanatory memorandum may assist construction but cannot displace the Rules’ clear language. In a deportation appeal under Article 8, however, the Rules are not conclusive. Where a person arrived as a young child and spent most of childhood in the United Kingdom, the proportionality assessment must address the relevant Maslov principles, including the need for very serious reasons to justify expulsion.

Paul Zanoto Pembele, a citizen of the Democratic Republic of the Congo, appealed against a First-tier Tribunal decision dismissing his challenge to automatic deportation under section 32(5) of the UK Borders Act 2007.

The First-tier Tribunal found that he could not meet paragraph 399(a), 399(b) or 399A of the Immigration Rules. It treated his residence before a 1999 grant of indefinite leave as temporary admission rather than valid leave. It also rejected his Article 8 claim.

The Upper Tribunal considered whether temporary admission counted as “valid leave” for paragraph 399(b)(i), and whether the First-tier Tribunal had lawfully assessed proportionality under Article 8 in light of his arrival in the United Kingdom as a child.

1. The appeal succeeded in part. The First-tier Tribunal did not err in holding that the appellant failed paragraph 399(b)(i) of the Immigration Rules. Its Article 8 proportionality decision was, however, materially flawed and was set aside for re-making by the Upper Tribunal.

2. “Valid leave” in paragraph 399(b)(i) means formal leave to enter or remain under the Immigration Act 1971. The ordinary meaning of the Rules, read in their statutory and linguistic context, compelled that conclusion. Temporary admission is not such leave and the period before the 1999 grant of indefinite leave could not count towards the 15-year requirement.

3. The differing reference in the explanatory memorandum to lawful residence did not alter that construction. Explanatory material may illuminate background and purpose, but it remains an aid to construction. It cannot replace the language actually adopted in the Rules.

4. The appellant could not rely on a near-miss argument. He was two years short of the prescribed period of valid leave. In any event, the Rules did not conclusively determine the separate Article 8 assessment.

5. The First-tier Tribunal had adequately addressed the children’s best interests and was entitled to assess the strength of the family life as it did. But it failed to consider that the appellant had entered the United Kingdom as a young child and spent most of his childhood there. It did not apply the relevant principles in Maslov v Austria, 1638/03 [2008] ECHR 546, including the requirement for very serious reasons to justify expulsion in such circumstances.

6. That omission was fundamental and material. The Article 8 decision was set aside. The Tribunal directed a resumed hearing, allowing limited further evidence concerning current circumstances before it re-made the proportionality decision.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal in part. It upheld the First-tier Tribunal’s conclusion on paragraph 399(b)(i) of the Immigration Rules, but set aside the Article 8 proportionality decision for re-making.
• First-tier Tribunal: Dismissed the appeal against the Secretary of State’s decision that section 32(5) of the UK Borders Act 2007 applied and against deportation.