Muhammad Ayaz Niaz v The Secretary of State for the Home Department

Section 104(2) of the Nationality, Immigration and Asylum Act 2002 exhaustively states when an appeal is not finally determined. If none of its stated conditions applies, and the appeal has not lapsed, been withdrawn or been abandoned, it is finally determined and is no longer pending.

Quashing a refusal of permission to appeal restores the position that the permission application is awaiting determination. The appeal then becomes pending again, but the quashing does not retrospectively make a removal unlawful where the appeal was not pending at the time.

For long residence, the requirements in paragraph 276B(i) to (v) of the Immigration Rules are separate and cumulative. The overstaying disregard in paragraph 276B(v) does not qualify the requirement for ten years’ continuous lawful residence in paragraph 276B(i)(a).

The appellant, a Pakistani national, appealed against the refusal of indefinite leave to remain based on ten years’ continuous lawful residence. The First-tier Tribunal held that a gap in lawful leave during 2009 meant that he could not satisfy paragraph 276B of the Immigration Rules. It also rejected his private-life case under paragraph 276ADE(1) and Article 8.

Permission to appeal was refused by the First-tier Tribunal and then the Upper Tribunal. While judicial review of the Upper Tribunal’s refusal was pursued, the appellant was removed from the United Kingdom. The Court of Appeal later granted permission and the High Court quashed the Upper Tribunal’s refusal of permission.

The issues were whether the appeal had been pending when the appellant was removed, whether it was thereafter to be treated as abandoned, and whether the First-tier Tribunal had erred in applying the long-residence rules.

1. Appeal dismissed. The First-tier Tribunal’s decision contained no error of law.

2. Section 104(2) of the Nationality, Immigration and Asylum Act 2002 is exhaustive. It identifies the circumstances in which an appeal under section 82(1) is not finally determined. Accordingly, where none of section 104(2)(a) to (c) applies, and the appeal has not lapsed, been withdrawn or abandoned, it must be treated as finally determined. Legal certainty is required because section 78 prohibits removal only while an appeal is pending.

3. The Upper Tribunal’s refusal of permission meant that the appellant’s appeal was no longer pending when he was removed. The subsequent quashing of that refusal restored the position that the permission application was awaiting determination. The appeal therefore became pending again. That later event did not render the earlier removal contrary to section 78. The Tribunal applied AB v Secretary of State for the Home Department [2017] EWCA Civ 59.

4. The Tribunal agreed, as a general proposition, with SR (Algeria) v Secretary of State for the Home Department [2015] EWCA Civ 1375 that an appellant who is forcibly removed does not thereby “leave” the United Kingdom for section 92(8). Such removal does not itself abandon a pending appeal. That principle did not alter the result because this appeal was not pending at the date of removal.

5. The Court of Appeal’s reasoning in R (Masum Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070 was decisive on the merits. Paragraph 276B(i) to (v) contains separate, freestanding requirements. Paragraph 276B(v) does not excuse failure to establish ten years’ continuous lawful residence under paragraph 276B(i)(a). The First-tier Tribunal was therefore correct to find that the 2009 gap prevented the appellant satisfying paragraph 276B.

6. The Tribunal also found no demonstrated error in the conclusions on paragraph 276ADE or Article 8 outside the Rules. The present appeal was not a vehicle for investigating the earlier rejection of the appellant’s leave applications. Any further case, including one based on Article 8, should be made in an entry-clearance application.

• Upper Tribunal (Immigration and Asylum Chamber): The appeal from the First-tier Tribunal was dismissed in this decision.
• High Court: Following permission granted by the Court of Appeal, the High Court quashed the Upper Tribunal’s earlier refusal of permission to appeal.
• First-tier Tribunal: The appeal against the refusal of indefinite leave to remain was dismissed. The Tribunal found that paragraph 276B was not met and rejected the private-life and Article 8 claims.