Bertha Joe-Okonkwo & Anor v The Secretary of State for the Home Department

A former policy concerning delay and residence did not give every adult with six years’ lawful residence an expectation of discretionary leave. The policy concerned residence materially caused by delay after an assessment of removal prospects. A claimant cannot rely on it where there was no relevant delay.

A health claim may engage Article 8 where a person lawfully resident before diagnosis has received an organ transplant and removal would prevent effective access to medication necessary to preserve it. Such a claim requires proper evidence and argument before the First-tier Tribunal. A judge does not err by failing to decide a novel and undeveloped case.

The Nigerian appellants were husband and wife. Mrs Joe-Okonkwo had entered lawfully as a student and later received a kidney transplant in the United Kingdom. They sought discretionary leave outside the Immigration Rules, relying on her medical needs, lawful residence and compassionate circumstances.

After a lengthy procedural history, First-tier Tribunal Judge Simpson dismissed their appeal against refusal of further leave, while holding the removal decision unlawful. The appellants appealed on two grounds: alleged unfairness in not applying the former rule 395C policy and an asserted breach of Articles 3 and 8 arising from Mrs Joe-Okonkwo’s health and transplant.

The central issue was whether Judge Simpson had made an error of law by rejecting those grounds.

1. The appeals were dismissed. Judge Simpson had made no error of law in dismissing the appeal against refusal of further leave. No lawful removal decision had yet been made.

2. The Upper Tribunal rejected the submission that Chapter 53 of the EIG Instructions gave an adult with six years’ lawful residence an expectation of discretionary leave. Read in context, the relevant part of the policy concerned residence accrued because of delay by the Home Office after an initial assessment of removal prospects. Mrs Joe-Okonkwo’s earlier residence resulted from her study and post-study leave, not delay. There had also been no material delay after the August 2011 application.

3. The Tribunal held that its construction was consistent with Mohammed [2012] EWHC 3091 Admin and Hakemi and others [2012] EWHC 1967 (Admin). In any event, no clear former policy gave the appellants an expectation of further leave. A change in policy was therefore not unfair. Relevant compassionate circumstances could instead be examined under Article 8.

4. For Article 3, the binding health-case authorities required attention to conditions in the country of return and the consequences of losing treatment there. The duration and character of lawful residence in the United Kingdom added little to that Article 3 analysis.

5. The Tribunal nevertheless gave important Article 8 guidance. An organ transplant provided during lawful residence, coupled with an inability in the country of return effectively to obtain the immune-suppressant medication needed to preserve it, may found a strong Article 8 private-life claim. The state’s participation in creating the claimant’s altered physical condition may be relevant to proportionality. But that coherent argument, its supporting authorities and necessary evidence had not been deployed before Judge Simpson. She could not be criticised for failing to determine it.

6. Any future removal decision must assess the appellants’ current circumstances, including a properly evidenced Article 8 health claim and applicable policy guidance. The earlier dismissal did not preclude an appeal against that distinct future decision.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellants’ appeal against Judge Simpson’s decision, finding no error of law.

• First-tier Tribunal: on 20 March 2013, Judge Simpson dismissed the appeal against refusal of further leave but held the removal decision unlawful.

• Upper Tribunal (Immigration and Asylum Chamber): on 28 December 2012, Judge Dawson set aside an earlier First-tier Tribunal decision in light of Adamally and Jaferi (s.47-removal decisions) [2012] UKUT 414 (IAC).

• First-tier Tribunal: on 8 November 2012, allowed the appeals on the basis that refusal of leave and removal could not lawfully be combined.