BG (Jamaica) v Secretary of State for the Home Department

Paragraph 276ADE(v) of the Immigration Rules requires an applicant, at the date of application, to be aged 18 or above and under 25. A person who has reached 25 does not satisfy that condition, however close to their 26th birthday. Where the rules-based claim fails but an alternative Article 8 claim was not determined below, the case may be remitted for that claim to be considered.

BG, a Jamaican national, entered the United Kingdom aged 13 and applied for further leave to remain. The First-tier Tribunal allowed his appeal under paragraph 276ADE(v), although he was aged 25 at the date of application. The Upper Tribunal dismissed the Secretary of State’s appeal. The Court of Appeal considered whether a person aged 25 could be regarded as being under 25 years for the purposes of the Immigration Rules. It also addressed the appropriate course for BG’s alternative claim under Article 8, which had not been considered below.

The appeal was allowed unanimously. Lord Justice Sales gave the first judgment, with which Lord Justices Vos and Moore-Bick agreed.

1. Paragraph 276ADE(v) required the applicant, at the date of application, to be aged 18 or above and under 25 years. The requirement was clear. BG was already 25 when he applied and therefore failed the age condition. His proximity to his 26th birthday could not alter that conclusion. The First-tier Tribunal and Upper Tribunal had erred in law.
2. The court did not need to determine the Secretary of State’s further argument that BG had not spent at least half his life living continuously in the United Kingdom. Lord Justice Sales observed that the arithmetic also appeared to support that argument.
3. BG’s alternative claim for leave to remain outside the Rules under the Human Rights Act 1998 and Article 8 had not been considered by the First-tier Tribunal. The case was accordingly remitted to that tribunal to determine the Article 8 claim.

• Court of Appeal (Civil Division): In [2015] EWCA Civ 960, allowed the Secretary of State’s appeal and remitted the case to the First-tier Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the Secretary of State’s appeal, finding no error of law in the First-tier Tribunal’s decision.
• First-tier Tribunal: Allowed BG’s appeal under paragraph 276ADE of the Immigration Rules and did not consider his alternative Article 8 claim.