KI (Nigeria) v Secretary of State for the Home Department

For a pending immigration application, the transitional provisions governing amended Immigration Rules must be followed. The initial implementation provision for applications made before 9 July 2012 was altered by paragraph A277C, effective from 6 September 2012. A decision made after that date could therefore apply Appendix FM and the private-life provisions, even where the application pre-dated 9 July 2012.

Article 8 should ordinarily be considered first through the relevant Rules and then outside them only if compelling circumstances remain insufficiently recognised. A long-residence rule cannot be applied where no application was made under it and it is no longer in force. Serious administrative delay is relevant to proportionality, but delay alone does not convert an otherwise unsuccessful claim into a successful one.

The appellant, a Nigerian national, applied for leave to remain as a bereaved spouse after the death of his British wife. The Secretary of State took almost nine years to decide the application and refused it in March 2013. During that period the appellant remarried, had three children, established a business and was convicted of business-related offences.

The First-tier Tribunal allowed his appeal under the long-residence Rules and Article 8. The Upper Tribunal set that decision aside for material errors of law, reheard the case and dismissed the appeal. The appeal to the Court of Appeal concerned which version of the Immigration Rules applied to the pending application and whether the Upper Tribunal had erred in its Article 8 proportionality assessment, particularly in treating the delay as non-determinative.

The appeal was dismissed. Richards LJ gave the judgment, with Kitchin and Sales LJJ agreeing.

1. Applicable Rules. The transitional issue was resolved by Singh v Secretary of State for the Home Department [2015] EWCA Civ 74. The initial implementation provision in HC 194 displaced the usual principle in Odelola v Secretary of State for the Home Department [2009] UKHL 25; [2009] 1WLR 1230 for the relevant period. HC 565 subsequently introduced paragraph A277C with effect from 6 September 2012. Since the decision was made in March 2013, the Secretary of State was entitled to apply Appendix FM and paragraphs 276ADE to 276DH.
2. Errors in the First-tier Tribunal. The First-tier Tribunal was wrong to proceed on the basis that the new Rules did not apply and to assess Article 8 without regard to them. It was also wrong to apply paragraph 276B, because no application had been made under that provision and it was no longer in force. The Upper Tribunal was therefore right to set aside the determination and rehear the case.
3. Article 8. The Upper Tribunal correctly considered the application first under the relevant Rules and then under Article 8, applying the approach endorsed in Izuazu (Article 8 - new rules) [2013] UKUT 45 (IAC) and Nagre, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 7200 (Admin). Its Article 8 assessment was directed by the five-stage approach in Razgar, R (on the Application of) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368.
4. Delay and proportionality. The very serious delay was strongly deprecated and was properly treated as a factor in the appellant’s favour. The Upper Tribunal was entitled to consider, following EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] 1 AC 1159, the circumstances of the delay, the weakness of the underlying application and the appellant’s failure to take other steps to regularise his position. Delay alone did not make the refusal disproportionate. No material error of law was shown in the Upper Tribunal’s conclusion.

1. Court of Appeal (Civil Division). The appeal was dismissed. The Court held that the Upper Tribunal had correctly set aside the First-tier Tribunal’s determination and had committed no material error of law in its rehearing or Article 8 assessment.
2. Upper Tribunal (Immigration and Asylum Chamber). The determination of the First-tier Tribunal was set aside for material errors of law. The Upper Tribunal reheard the case and dismissed the appellant’s appeal.
3. First-tier Tribunal. The appeal against the Secretary of State’s refusal of leave to remain was allowed under the long-residence Rules and Article 8.