Abdulla al Mansur v The Secretary of State for the Home Department

Poor immigration advice does not strengthen the private or family life protected by Article 8. It may be relevant only if, in the particular circumstances, it provides a reason to reduce the weight ordinarily given to firm and effective immigration control.

That will be rare. A person will normally bear the consequences of taking poor advice. An exceptional case may arise where a professional regulator has found that an adviser blatantly failed to follow the client’s instructions, directly causing an otherwise likely successful application to be invalid. A respondent’s failure promptly to disclose that invalidity may also reduce the public-interest weight in the Article 8 balance.

The appellant, a Bangladeshi citizen, appealed from the First-tier Tribunal’s dismissal of his human-rights appeal against the refusal of his long-residence application and human-rights claim.

While his earlier appeal remained pending, his leave was extended under Immigration Act 1971, section 3C. He applied for further leave on the day he instructed his regulated immigration adviser to withdraw that appeal. The adviser withdrew it three days later, making the application invalid under section 3C(4).

The professional regulator found that the adviser had failed to follow instructions and had not provided competent or diligent representation. The respondent had initially said that the application was valid, despite records showing the section 3C issue. The central question was whether those matters affected the proportionality of removal under Article 8.

1. Appeal allowed. The First-tier Tribunal had erred in law. Its decision was set aside and the Upper Tribunal re-made the decision by allowing the appeal on human-rights grounds.

2. The appellant’s application of 7 October 2014 was invalid because it was made while his leave was extended by section 3C and section 3C(4) barred an application to vary leave during that period. The appellant therefore could not satisfy the continuous lawful residence requirement of paragraph 276B of the Immigration Rules.

3. The First-tier Tribunal wrongly treated the respondent’s conduct as no more than delay in deciding an application. The respondent’s records showed that the application had been made during section 3C leave, yet the respondent told the appellant that it was valid. In the unusual circumstances, the respondent ought to have informed him promptly of the invalidity. Had it done so, he could in practice have regularised his position before materially overstaying. This reduced the weight otherwise due to immigration control in the Article 8 assessment.

4. The failings of an immigration adviser do not themselves enhance the protected private or family life under Article 8. The issue is whether the failings justify qualifying the public interest in effective immigration control. Mere poor advice will rarely do so, even where the client is blameless.

5. This was an exceptional case. The OISC had made clear and categorical findings that the adviser failed to follow the appellant’s specific instruction to withdraw the appeal at the required time. That failure directly caused the invalidity of an application which was likely otherwise to have succeeded. Taking that matter together with the respondent’s conduct, the appellant’s substantial private life outweighed the public interest. Removal would be disproportionate under Article 8.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for errors of law, and re-made the decision by allowing the human-rights appeal.
• First-tier Tribunal: Dismissed the appellant’s appeal against the respondent’s decision of 15 July 2015 refusing his human-rights claim.