Haleemudeen v Secretary of State for the Home Department

An Article 8 proportionality assessment must be made in the policy context of the Immigration Rules (HC 395). The Rules are more than a starting point. A tribunal departing from them must identify particularly compelling features, although it need not use those exact words if the substance is clear. A near-miss analysis based only on failure to satisfy bright-line requirements is impermissible. Provisions defining continuous lawful residence remain relevant guidance outside the Rules, though they are not dispositive. An appellate tribunal should remit a fact-sensitive proportionality issue where it lacks the evidence required to decide it.

The appellant, a Sri Lankan national, had lived lawfully in the United Kingdom for many years and applied for indefinite leave to remain on the basis of long residence. The Secretary of State refused the application because of an unspent conviction and concluded that removal would not breach Article 8.

The First-tier Tribunal dismissed the appeal under the Immigration Rules but allowed it under Article 8. The Upper Tribunal set that decision aside and remade the decision, dismissing the Article 8 appeal. The issues before the Court of Appeal were whether the First-tier Tribunal had made a material error of law, whether the Upper Tribunal’s proportionality assessment was flawed, and whether the matter should be remitted.

The appeal was allowed and the Article 8 issue was remitted to the tribunal. Lord Justice Beatson gave the judgment, with Lord Justice Sullivan and Lady Justice Sharp agreeing.

1. The First-tier Tribunal’s reasons were procedurally adequate. They gave sufficient detail to show the principles applied and the reasons for the conclusion. Specialist tribunals need not give elaborate reasons or address every argument. This approach was consistent with R (Iran) and others v Secretary of State for the Home Department [2005] EWCA Civ 982, R (Ashworth Hospital Authority) v Mental Health Review Tribunal [2001] EWHC 901 (Admin) and South Bucks DC v Porter (No 2) [2004] UKHL 33.
2. Nevertheless, the First-tier Tribunal made a substantive public-law error. It failed to assess the appellant’s Article 8 case against the policy in paragraph 276ADE and Appendix FM of the Immigration Rules (HC 395). A general reference to apparent harshness did not identify compelling circumstances justifying departure from the Rules. In the circumstances, it amounted in substance to an impermissible near-miss approach. The appellant’s intention to migrate was also treated as too strong a factor without proper consideration of the expectation generated by his Highly Skilled Migrant status.
3. The Upper Tribunal’s re-made decision was itself flawed. The appellant’s 2007 departure did not break continuous lawful residence. Section 3C leave meant that he could reasonably expect to return lawfully, so paragraph 276A(a)(iii) did not apply to break residence. Provisions such as paragraph 276A remain relevant guidance about the Secretary of State’s policy even where the application falls outside the Rules; they cannot be selectively disregarded.
4. The Upper Tribunal also failed accurately to reflect the significance of the Highly Skilled Migrant scheme, under which a migrant could have a legitimate expectation of eventual settlement. Proportionality is a difficult evaluative exercise. It was not inevitable that a properly directed tribunal would reach the same conclusion. The Court of Appeal could not decide proportionality itself because it had not seen the appellant’s witness statement or heard his evidence. The matter was therefore remitted.

• Court of Appeal (Civil Division): Allowed the appeal and remitted the Article 8 proportionality issue to the tribunal.
• Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s Article 8 decision and remade the decision, dismissing the appeal against removal.
• First-tier Tribunal: Dismissed the appeal under the Immigration Rules but allowed it under Article 8.