Koori & Ors v The Secretary of State for the Home Department

For the seven-year private-life route under paragraph 276ADE(iv) of the Immigration Rules, continuous residence must be assessed at the date of application. Residence accrued before the decision cannot cure a shortfall.

An apparent acceptance of eligibility caused by an unconsidered legal error is not a concession or waiver. It may be corrected unless that would be unfair, including through detrimental reliance. An appellate court may permit a fresh point based on the correct law and undisputed facts where it requires no further fact-finding and causes no unfairness, particularly where the public interest requires the Immigration Rules to be applied correctly.

The appellants were an Indian family comprising two parents and three children. They applied for leave to remain on private-life and human-rights grounds on 27 September 2012. The Secretary of State’s reconsidered decision of 3 January 2014 rejected their claims and directed their removal.

The First-tier Tribunal dismissed their appeal. The Upper Tribunal also dismissed it, holding that the later version of paragraph 276ADE(iv) applied, although it reached that conclusion by treating the removal decision as distinct from the refusal of leave.

Before the Court of Appeal, the material issues were whether the children met the seven-year requirement, which transitional provisions governed paragraph 276ADE(iv), and whether the Secretary of State could rely on points not properly raised below.

1. Appeal dismissed. The children had not completed seven years’ continuous residence when the applications were made. Paragraph 276ADE(iv) could therefore not be invoked, irrespective of the later residence accrued before the Secretary of State’s decision.

2. The Secretary of State had not made a considered decision to waive that requirement. Her references to seven years’ residence at the date of decision showed a mistake about the legally relevant date. Although Immigration Act 1971, section 3(1), permits leave outside the Rules, there was no deliberate and lawful exercise of that discretion here.

3. HC 820 had modified HC 760 before HC 760 came into force. It required the amended version of paragraph 276ADE(iv), including the reasonableness requirement, to be applied to applications decided after 13 December 2013. The Secretary of State and the First-tier Tribunal had accordingly applied the correct version. The court proceeded on the accepted view that the Upper Tribunal’s separate-treatment of removal and refusal was erroneous, but that error was immaterial.

4. A considered and lawful administrative decision affecting individual rights ordinarily has finality: Re 56 Denton Road, Twickenham [1953] Ch.51. A decision made on a mistaken premise may, however, be revisited to apply the law correctly unless correction would be unfair, for example because of detrimental reliance: R v Department of Education and Employment, ex parte Begbie [2000] 1 WLR 1115.

5. The Secretary of State could rely on the correct seven-year calculation and HC 820 notwithstanding the failures below. The points required only application of the law to undisputed facts, required no remission or further fact-finding, and caused no unfairness. The public interest in applying the Immigration Rules correctly strongly supported allowing the errors to be corrected. The appellants had already made substantial representations relevant to reasonableness and could have supplied more material if desired.

Underhill LJ agreed. He additionally criticised the failure of both representatives below, particularly the Home Office representative, to ensure that the tribunals had the applicable transitional provisions.

• Court of Appeal (Civil Division): dismissed the appeal in [2016] EWCA Civ 552.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal from the First-tier Tribunal in a determination promulgated on 24 September 2014.

• First-tier Tribunal: dismissed the appellants’ appeal on 19 June 2014.

• Secretary of State: on reconsideration, rejected the human-rights claims and made removal decisions on 3 January 2014.