Luma Sh Khairdin, R (on the application of) v The Secretary of State for the Home Department

Where an application for leave to remain was made before 9 July 2012 and remained undecided, the transitional provision in HC 194 requires it to be decided under the Immigration Rules in force on 8 July 2012. That requirement is not confined to applications expressly made under a particular Part of the Rules.

In an Article 8 judicial review, the Tribunal must itself determine whether the interference is justified. It must therefore have regard to the public-interest considerations in Nationality, Immigration and Asylum Act 2002 Part 5A. This differs from the error-of-law stage of a statutory appeal from the First-tier Tribunal.

The applicant, an elderly Iraqi national, challenged three decisions refusing her leave to remain. She had entered as a visitor in 2007 and later relied on her dependence on her United Kingdom daughter and family, her health, and the absence of effective alternative support in Iraq.

Her January 2012 application had been made on form FLR(O), outside the Immigration Rules. The respondent considered the application under the post-9 July 2012 Rules and under Article 8. The applicant contended that the transitional provision in HC 194 required consideration under the earlier Rules, including paragraph 317 governing dependent relatives.

The Tribunal also considered whether Part 5A of the Nationality, Immigration and Asylum Act 2002, which had come into force during the proceedings, applied to an Article 8 judicial review.

1. Judicial review was granted and the three refusal decisions were quashed. Permission was also granted to amend the grounds to raise paragraph 317 of the Immigration Rules.

2. The version of paragraph 317 in force when the primary decision was made did not contain the general-grounds-of-refusal condition relied on by the respondent. Its sub-paragraph (vii) concerned unspent convictions. Nor did paragraph 322(1) apply to an applicant with no extant leave to vary. The Tribunal held that it would in any event have been irrational in 2012 to rely on the applicant’s 2007 failure to leave as a visitor without accounting for the material subsequent changes in her circumstances.

3. Although the January 2012 application was not made under Part 8, HC 194 required an undecided pre-9 July 2012 application for leave to remain to be decided in accordance with the earlier Rules. The respondent should therefore have considered whether the evidence satisfied paragraph 317. The evidence disclosed a compelling, and at least likely successful, case under that provision. This was not a prohibited near-miss argument.

4. The respondent’s detailed use of the new Rules was materially unlawful. It could defend the error only by showing that the outcome would undoubtedly have been the same without that wrong starting point. Given the applicant’s age, health, dependency, family relationships and claimed lack of alternative support, that conclusion was not rationally available. The failure also impaired the Article 8 proportionality assessment because satisfaction of paragraph 317 would materially reduce the public-interest weight of immigration control.

5. Part 5A applied to this judicial review. Under section 117A, the Tribunal had to determine whether the Article 8 interference was justified and have regard to section 117B. This was distinct from the initial error-of-law task in a statutory appeal from the First-tier Tribunal. Section 117B did not assist the respondent on the applicant’s family-life case; the evidence also showed that she would not be a burden on taxpayers.

Upper Tribunal (Immigration and Asylum Chamber): On judicial review, the Tribunal quashed the respondent’s decisions of 27 November 2012, 8 February 2013 and 13 June 2014 refusing leave to remain.