Edgehill & Anor v Secretary of State for the Home Department

An express transitional provision stating that applications made before a specified date will be decided under the earlier Immigration Rules prevents reliance on a later rule when deciding those applications, including applications relying on article 8 of the European Convention on Human Rights. The Rules should be construed sensibly and according to their natural and ordinary meaning as statements of administrative policy.

A reference to the later rule does not itself invalidate a decision. The decision is unlawful only where the decision-maker treated the later requirement as a consideration materially affecting the result.

Jacqueline Elizabeth Edgehill and Hassina Abdallah Bhoyroo each applied before 9 July 2012 for leave to remain on article 8 grounds. Their applications were refused and their appeals were dismissed by the First-tier Tribunal and then by the Upper Tribunal.

The new Immigration Rules, effective from 9 July 2012, included rule 276ADE(iii), which specified 20 years’ continuous residence as a private-life requirement. The transitional provisions stated that applications made before that date and not yet decided would be decided under the rules in force on 8 July 2012. The central question was whether an article 8 application made before 9 July 2012 could lawfully be rejected by reference to the new 20-year requirement.

1. JE’s appeal was allowed and remitted; HB’s appeal was dismissed. The transitional provisions applied to the appellants’ pre-9 July 2012 applications for leave to remain under article 8. Their natural and ordinary meaning was that the Secretary of State would not rely on the new Immigration Rules when deciding such applications.

2. The Secretary of State’s submission that article 8 applications were not applications under the Rules was rejected. Although the Rules are not subordinate legislation, they create legal rights and are statements of administrative policy. Construed sensibly, the transition made no distinction between an article 8 application and another application for leave to remain.

3. The court applied the construction approach stated in Mahad v Entry Clearance Officer [2009] UKSC 16. It also distinguished Odelola v Secretary of State for the Home Department [2009] UKHL 25, where there had been no express provision preserving the earlier Rules for pending applications.

4. A mere reference to rule 276ADE(iii) does not make a decision unlawful. Invalidity arises only if the 20-year requirement materially affected the decision. The Upper Tribunal had placed substantial weight on JE’s failure to meet that requirement. Its decision was therefore quashed and remitted for reconsideration.

5. HB had met neither the former 14-year requirement nor the new 20-year requirement. Her weak article 8 claim would have failed irrespective of rule 276ADE(iii). The First-tier Tribunal was also entitled to find, from the evidence of visits and relatives, that HB and her husband retained ties with Mauritius. The Upper Tribunal could not be criticised for accepting that finding.

• Court of Appeal (Civil Division): Allowed JE’s appeal, quashed the Upper Tribunal’s decision and remitted it for reconsideration. Dismissed HB’s appeal.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed JE’s appeal by a decision dated 11 February 2013 and dismissed HB’s appeal.

• First-tier Tribunal: Dismissed each appellant’s appeal against the Secretary of State’s refusal of her article 8 application.