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

Failure to meet the residence requirement in Immigration Rules rule 276ADE does not require leave to be granted outside the Rules under Article 8. Long residence, including a near miss under rule 276ADE(v), does not of itself establish an arguable Article 8 case where there are no very significant obstacles to integration and no exceptional circumstances. In those circumstances, certification under section 92 as unfounded may be justified.

Mr Shahjahan entered the United Kingdom as a child and made several applications for leave to remain. His fifth application was refused after the Secretary of State found no family life, no very significant obstacles to integration, and no exceptional circumstances justifying leave outside the Rules under Article 8. The claim was certified as unfounded under section 92.

The Upper Tribunal refused judicial review on the papers and again after an oral hearing. The renewed application concerned whether the decision-maker and Tribunal had fairly assessed the obstacles to integration and whether the applicant’s long residence created an arguable case based on exceptional circumstances.

1. Outcome. The renewed application for permission to appeal was dismissed. The stay imposed by Jackson LJ was removed.
2. Application of the Rules. The Secretary of State found that there was no family life on which the applicant could rely. Private life could in theory be engaged, but rule 276ADE required 20 years’ residence and the applicant had been in the United Kingdom for 16 years. The decision-maker also found no very significant obstacles to integration and no exceptional circumstances justifying leave outside the Immigration Rules under Article 8.
3. Long residence and the near miss. The applicant’s 16 years in the United Kingdom, the difficulty of uprooting him, and the near miss under rule 276ADE(v) had been considered by the Upper Tribunal. Those matters did not establish an arguable case. The court also found no argument that there were insurmountable obstacles to return and integration.
4. Certification and error of law. This was the third determination of whether there was an arguable case. The Court of Appeal found no error of law in the Secretary of State’s disposition or in the Tribunals’ treatment of the case. In the circumstances, certification under section 92 as unfounded was clearly justified.

• Court of Appeal (Civil Division) — renewed application for permission to appeal dismissed; stay removed: [2016] EWCA Civ 623.
• Upper Tribunal (Immigration and Asylum Chamber) — judicial review refused on the papers and again after an oral hearing.
• Secretary of State — fifth application for leave to remain refused and claim certified as unfounded under section 92.