BB (Algeria), R (on the application of) v Secretary of State for the Home Department

Immigration Rules generally apply according to the rules in force when the decision is made, unless an express transitional provision provides otherwise. A saving provision for pending applications does not reopen a completed refusal or convert a later removal decision into a decision on an outstanding application. An applicant who had not met a former continuous-residence threshold before the rules changed has no vested right to continue accruing residence under the former rule. The former 14-year long-residence rule had been replaced by a 20-year requirement before the appellant qualified. The appeal was therefore dismissed.

The appellant challenged his removal after the Secretary of State refused his application for indefinite leave to remain under the former 14-year long-residence rule. The First-tier Tribunal found that his residence began no earlier than August 1998 and dismissed his appeal, including his Article 8 claim. The Upper Tribunal identified an error in the First-tier Tribunal’s calculation but held it immaterial and dismissed the appeal. On a limited appeal, the Court of Appeal considered whether the HC 194 implementation provision allowed the appellant to continue accruing residence under the former rule after 9 July 2012, or required the removal decision to be assessed under the former rules.

Appeal dismissed unanimously. The appeal was limited to the effect of the transitional provisions on paragraph 276B of the former Immigration Rules. The Article 8 proportionality finding was not challenged.

1. The statutory framework permitted the Secretary of State to make Immigration Rules governing immigration control. Under Odelola (FC) v Secretary of State for the Home Department [2009] UKHL 25, absent an express transitional provision, immigration decisions are made under the rules in force when the decision is taken. The Rules may create legal rights and appeal rights under the Nationality, Immigration and Asylum Act 2002, but they do not ordinarily create a vested right to determination under the rules existing when an application was made.
2. The HC 194 implementation provision saved applications for entry clearance, leave to remain or indefinite leave to remain made before 9 July 2012 which remained undecided on that date. It did not apply to removal decisions and did not require the Secretary of State to revisit a valid refusal of indefinite leave to remain made in March 2011.
3. The appellant had not completed 14 years’ residence when the former rule ceased to apply on 9 July 2012. He completed that period only on 1 August 2012, when the new Rules required 20 years. He therefore had no right to continue accruing residence under paragraph 276B and no notional later application could succeed under the former Rules.
4. Edgehill & Anor v Secretary of State for the Home Department [2014] EWCA Civ 402 concerned a genuinely transitional case involving an application made before 9 July 2012 which remained undecided. It did not govern this case. The Court followed the later preference for Edgehill expressed in Singh [2015] Imm A.R. 704, but distinguished its application to the present facts. Alternatively, after the HC 565 changes, the new Rules could be considered in any relevant later decision.
5. The Upper Tribunal’s decision was correct in substance. The appeal was dismissed.

• Court of Appeal (Civil Division): dismissed the appeal on the limited issue concerning paragraph 276B and the HC 194 transitional provision.
• Upper Tribunal (Asylum and Immigration Chamber): found an error of law in the First-tier Tribunal’s calculation, but held that it was immaterial and dismissed the appeal on 26 March 2013.
• First-tier Tribunal: dismissed the appeal on 9 October 2012, finding that the appellant had not proved residence before August 1998 and that removal was proportionate under Article 8.