Peggy Phumzile Msiza v The Secretary of State for the Home Department

For the former version of paragraph 276ADE(vi) of the Immigration Rules, an absence of ties required more than the absence of family members or remote links with the proposed country of return. The decision-maker had to make a rounded assessment of whether the person retained a continued connection with life there.

An error in recording the time spent in that country did not make a refusal unlawful where, on the material before the decision-maker, the only rational outcome was refusal and the decision would inevitably have been the same. In any event, a later, lawful decision could supplement the earlier decision and cure any defect where it properly formed a continuation of it.

The applicant, a South African national, sought judicial review of the Secretary of State’s refusal of leave to remain on private-life grounds. She contended that she had no ties to South Africa because much of her childhood and education had been spent in Zimbabwe, and because she had no known relatives in South Africa.

The refusal of 27 February 2014 stated incorrectly that she had spent 27 years in South Africa. Permission was granted because it was arguable that the Secretary of State had failed adequately to engage with evidence about her residence there. After permission, the Secretary of State issued a further decision dated 22 January 2015, correctly identifying 15 years of residence and again rejecting the claim under paragraph 276ADE(vi) and Article 8.

The central issues were whether the original decision was unlawful, whether the later decision cured any defect, and whether relief should be refused in any event.

1. The application for judicial review was refused. It was proper to proceed in the applicant’s absence. She knew of the hearing, her late adjournment request was unpersuasive, and she had not given a satisfactory reason for failing to attend.

2. The original refusal was not unlawful. Although it wrongly stated that the applicant had spent 27 rather than 15 years in South Africa, the material before the Secretary of State was sparse. It showed substantial periods of residence and education in South Africa, repeated movement between South Africa and Zimbabwe, English-language ability, good education, and no health impediment to independent living.

3. Under paragraph 276ADE(vi) of the Immigration Rules, “ties” meant more than remote or abstract links. The enquiry required a continued connection with life in the country of return and a rounded assessment of all relevant circumstances. It was not confined to social, cultural and family matters. The absence of family members there was therefore not determinative. On the facts, the applicant retained sufficient ties to South Africa and could reintegrate there.

4. The error as to the duration of South African residence was in any event immaterial. The refusal would necessarily have been the same had the Secretary of State correctly recorded 15 years.

5. Alternatively, the decision of 22 January 2015 was a continuation of the original decision. It considered the applicant’s history fully, corrected the error, and gave lawful reasons on ties and exceptional circumstances. It therefore supplemented and cured any defect in the first decision. Even if it had stood alone, it removed any legitimate purpose in continuing the judicial review and relief would have been inappropriate.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review application refused: [2015] UKUT 483 (IAC).
• Secretary of State for the Home Department: Refused leave to remain on 27 February 2014. A further decision dated 22 January 2015 supplemented that refusal and was treated by the Tribunal as a continuation of it.
• Upper Tribunal: Permission to bring judicial review proceedings was granted on 6 January 2015.